What it can do, what it can’t, and the liability nobody mentions
At L. Jennings Law, we believe an estate plan is finally about one thing: making sure the people you love aren’t left cleaning up a mess. So let me tell you about a mess I see more often than I’d like — and it usually starts with a well-meaning clerk, a busy bank teller, and a one-page form called an affidavit of heirship.
Here is a version of a story I could tell a dozen times over. A woman passes away. She owns a home and a bank account, both in her name only. She left three children, but no will. Her surviving husband walks into the courthouse, signs an affidavit, takes it to the bank — and the bank hands him the entire account. Everyone moves on. Nobody asks the question that matters: were those three children entitled to most of that money?
The short answer, in most cases like this, is yes. And the longer answer is a lesson in why this little form gets banks and families into trouble.
The two culprits and liable parties of this affidavit I see most often are banks or mineral companies who rely on an unofficial or unconforming affidavits to transfer bank account and mineral interests.
What an affidavit of heirship actually is
An affidavit of heirship is a sworn statement, usually given by two people who knew the family but don’t stand to inherit, identifying who a person’s heirs are when that person died without a will. In Arkansas it’s recorded in the county’s real-property (deed) records, and it’s built on our Table of Descents — the statute that sets out who inherits from someone who dies intestate (A.C.A. § 28-9-214).
Here’s the first thing worth knowing, and it surprises people: Arkansas has no dedicated statute that creates the affidavit of heirship or gives it power to move property. It is a creature of title-examination custom, resting on our descent law. It’s primarily a tool for clearing title to land — most often when no one probated the estate and years have gone by. The National Agricultural Law Center, housed right here in the University of Arkansas System, calls it the most “heir-friendly” way to clear title precisely because it’s cheaper and faster than court. That’s its appeal. But cheap and fast is not the same as safe.
What it can do
Used the right way, an affidavit of heirship serves one main purpose: it puts on the public record a sworn account of who the heirs to a piece of real estate are, so a title examiner years later can trace the chain of ownership. Our University of Arkansas legal scholars describe it as a legitimate means of “evincing title” to an intestate’s interest — the operative word being evincing. It documents. It creates a record. It’s genuinely useful when land has passed a generation or two without probate and the family agrees on who’s who.
What it can’t do — and this is where people get hurt
It does not transfer title. Recording an affidavit of heirship does not convey the property or automatically update ownership. It is only presumptive evidence — not proof — of who owns what. Two witnesses can honestly remember a family differently, and that’s exactly why the law treats the affidavit as a starting point, not a final word.
Title companies often won’t rely on it alone. Because it doesn’t definitively establish ownership or resolve debts, many title insurers hesitate to insure a sale based on the affidavit by itself, and may require a probate or a quiet-title action before they’ll write a policy. A family that thinks it has clean title can discover otherwise at the closing table.
It doesn’t decide shares — and “heir” is a trap word. An affidavit of heirship lists heirs. But under Arkansas law the word “heir” specifically does not include a surviving spouse (A.C.A. § 28-1-102). The spouse takes through separate doctrines — dower or curtesy and homestead — that sit outside the heir definition entirely. So a form that simply enumerates “heirs” can badly misstate who actually receives the property and in what proportion.
It is not the right tool for a bank account. This is the big one. An affidavit of heirship is a real-property title device. Arkansas has a separate, purpose-built statute for collecting a modest estate without full probate — the small-estate affidavit (A.C.A. § 28-41-101). That’s the instrument the law actually equips to gather accounts and personal property. When an institution pays out on the wrong form, it steps outside the protections the correct form was designed to give it.
Let’s do the math on our story
When someone dies intestate in Arkansas leaving children, the surviving spouse does not take everything. For personal property — a bank account — the spouse receives a one-third share and the children take the other two-thirds (A.C.A. §§ 28-11-305, 28-9-214). For real estate, the spouse receives a one-third life estate through dower or curtesy (A.C.A. § 28-11-301), plus, if it was the couple’s home and they were married more than a year, a homestead life estate in the residence (A.C.A. § 28-39-201). The children hold the remainder.
So in our story, the husband’s share of that bank account was roughly one-third. The three children were entitled to two-thirds — and it did not matter one bit that they weren’t his children. They were hers, and that’s what the law follows. The bank handed him money that belonged to those kids.
The liability nobody mentions
On the bank. Institutions like the safe feeling of a signed, notarized affidavit. But Arkansas gives a paying institution a statutory shield only when it pays “pursuant to the affidavit described in § 28-41-101” — the small-estate affidavit. Pay on that instrument, and you’re released as though you paid a court-appointed representative, with no duty to investigate (A.C.A. § 28-41-102). Pay out an account on an affidavit of heirship instead, and that specific statutory discharge does not attach. The institution has stepped outside the shield and may have simply paid the wrong people — which is a conversion of the true owners’ money. If those three children come asking for their two-thirds, the bank does not have the answer it thinks it has.
On the client. The person who signs the affidavit and collects is exposed too — often more than the bank. If a surviving spouse collects an entire account that was two-thirds the children’s, he is holding their money, and they can sue him for it — for their intestate share, and potentially for the costs his error created. And if the affidavit was filled out wrong to begin with, every one of those problems gets worse, not better.
The uncomfortable truth is that a defective affidavit doesn’t make the risk go away — it moves the risk onto the two parties least equipped to see it coming: the institution that paid, and the family member who signed.
The right tools for the job
- For accounts and personal property: use the small-estate affidavit (A.C.A. § 28-41-101) when the estate qualifies — generally $100,000 or less after excluding the homestead and spousal/minor allowances, with 45 days elapsed and no administration pending. It gives the bank a real safe harbor and forces the affidavit to name the actual distributees and their shares. Where the estate is larger or contested, open an administration.
- For land where probate lapsed: an affidavit of heirship can legitimately evidence title — but it must reflect the correct descent, including the spouse’s dower/curtesy and homestead, and every heir should join in any deed. The small-estate statute even lets a distributee issue a deed of distribution after publishing notice and clearing a three-month claim window (A.C.A. § 28-41-102).
- When you need certainty: a determination-of-heirship proceeding (A.C.A. § 28-53-101) produces a court order that is conclusive on the parties — the cure when title must be insurable or the family isn’t fully in agreement. A quiet-title action serves a similar role.
- Never treat a list of heirs as a list of who gets everything. Heirship answers “who’s in the family.” It does not answer “who owns this, and how much.”
The steward’s point
Here’s what I’d want you to take from all of this. Every hard problem above — the wrong form, the misfiled affidavit, the children shorted, the bank exposed, the family fractured — traces back to the same root: there was no plan. None of it happens if the account carries a proper beneficiary designation instead of nothing, if the home is deeded to a revocable trust or carries a beneficiary deed, and if the family knows in advance who is meant to receive what.
If your family is holding property, an account, or land that passed without a will — or if you’ve already signed something at the courthouse and you’re not sure it was right — let’s talk before it becomes the kind of mess that’s expensive to unwind.
