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Colorado Affidavit of Heirship

In Colorado, an affidavit of heirship becomes prima facie evidence of title only after twenty years of record, not the day it is filed.

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What brings you to an affidavit of heirship?

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Introduction

In Colorado, an affidavit of heirship is a sworn statement about death, intestacy, heirship, relationship, age, and identity that, once recorded, is accepted as prima facie evidence of those facts insofar as they affect title to real property, under C.R.S. Section 38-35-113. The catch is timing: that evidentiary effect attaches only after the affidavit has remained of record for twenty years, four times the wait some other states use. An affidavit recorded today carries no statutory evidentiary weight until the twenty-year clock runs, and even then it is rebuttable evidence, not a conveyance. Colorado never names the document in its own probate code; the entire recognition is one unamended 1941 sentence sitting in the conveyancing article of Title 38, alongside the general rules for recording instruments affecting real property. Title on an intestate death passes by descent under the Colorado Probate Code; the affidavit only helps prove later who the heirs are. When marketable title is needed sooner, Colorado's built answer is the judicial determination of heirship under C.R.S. Sections 15-12-1301 to 15-12-1309, available starting one year after death.

Key Things to Know

  1. 1

    Colorado recognizes an affidavit of heirship by statute, C.R.S. Section 38-35-113, but its statements become prima facie evidence of title only after the affidavit has been of record for twenty years (7,305 days) in the county where the real property is located. Recording it today creates no statutory evidentiary weight until that twenty-year period has run.

  2. 2

    The affidavit is evidence of who the heirs are, not a transfer of property. Nothing in C.R.S. Section 38-35-113 transfers, conveys, or vests title to real property. Title on an intestate death passes by descent under the Colorado Probate Code; the affidavit only helps prove the heirship facts once its evidentiary effect has attached.

  3. 3

    Colorado's heirship statute sets no affiant qualification, number, or disinterest requirement. If the affidavit is recorded as a title affidavit under the general recording statute, C.R.S. Section 38-35-109(5)(a), it must be made by someone with actual knowledge who is competent to testify, under penalty of perjury.

  4. 4

    Secondary sources commonly claim Colorado requires two disinterested affiants for an affidavit of heirship; that is incorrect. The two-disinterested-affiant rule at C.R.S. Section 38-31-103 belongs to a different statute and proves only that a joint tenant has died; it does not govern an affidavit of heirship and does not establish who the heirs are.

  5. 5

    Colorado's 2003 instant-effect title-affidavit statute, C.R.S. Section 38-35-109(5), gives some recorded affidavits prima facie force immediately, but its list is closed to name, age, identity, residence, military service, possession, surveyor corrections, and scrivener's errors. Death, intestacy, and heirship were deliberately left off that list.

  6. 6

    The affidavit reaches real property only, not personal property, and must be recorded in the county where the affected real property is situated. Colorado offers no alternative domicile-county venue; property in more than one county needs the affidavit recorded separately in each, with each county's twenty-year period running from its own recording date.

  7. 7

    When marketable title is needed before the twenty-year period runs, Colorado's built mechanism is the judicial determination of heirship, C.R.S. Sections 15-12-1301 to 15-12-1309, available starting one year after death. Unlike the affidavit, the resulting decree is conclusive as to the rights of heirs from the date of entry and is recorded with the same effect as a deed of conveyance from the decedent.

Key decisions before you file

Before you file a Affidavit of Heirship in Colorado, a few decisions shape the document: which option to choose and what each one means. The Affidavit of Heirship guide walks through them.

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Colorado Affidavit of Heirship (Compact State Terms)

This compact set states the Colorado-specific terms of an Affidavit of Heirship. Use it together with the national Affidavit of Heirship template, which carries the general identification, family-history, and signature provisions.

1. Governing Law. This Affidavit is governed by the laws of the State of Colorado, specifically C.R.S. Section 38-35-113.

2. Evidentiary Effect; Twenty-Year Waiting Period. Under C.R.S. Section 38-35-113, statements in this Affidavit relating to death, intestacy, heirship, relationship, age, sex, names, and identity are accepted as prima facie evidence of those facts, insofar as they affect title to real property, only after the Affidavit has remained of record for twenty years in the office of the county clerk and recorder of the county where the affected real property is situated. This Affidavit does not transfer, convey, or vest title to real property, and it carries no statutory evidentiary weight before the twenty-year period has run. Colorado is a race-notice recording state under C.R.S. Section 38-35-109(1), so recording this Affidavit promptly still protects notice, separately from the evidentiary clock.

3. Affiant. C.R.S. Section 38-35-113 states no affiant qualification, number, or disinterest requirement. This Affidavit is made by a person with actual knowledge of the stated facts who is competent to testify to them in a Colorado court, executed under penalty of perjury, consistent with the general title-affidavit rule at C.R.S. Section 38-35-109(5)(a). Secondary sources commonly cite a two-disinterested-affiant rule, but that requirement comes from a different Colorado statute, C.R.S. Section 38-31-103, and applies only to proof that a joint tenant has died; it does not apply to this Affidavit.

4. Real Property Only; Recording Venue. This Affidavit affects title to real property only and has no effect on personal property. It must be recorded in the office of the county clerk and recorder of the county where the affected real property is situated. Colorado provides no alternative domicile-county venue. If the affected real property lies in more than one county, record this Affidavit in each county, and each county's twenty-year period runs from that county's own recording date.

5. Not a Substitute for a Judicial Determination of Heirship. This Affidavit does not replace and is not equivalent to a judicial determination of heirship under C.R.S. Sections 15-12-1301 to 15-12-1309. Where marketable title is needed before the twenty-year period has run, the parties should pursue that proceeding instead, which produces a decree that is conclusive as to the rights of heirs from the date of entry and is recorded with the same effect as a deed of conveyance from the decedent to the heirs.

6. Execution. This Affidavit is signed under penalty of perjury and, upon recording, is indexed in the name of the record owner of the affected real property.

This compact Colorado set supplements the national Affidavit of Heirship template. It is general information, not legal advice; attorney review is available.

Once your Affidavit of Heirship is ready, you can check whether it needs to be notarized in Colorado in about a minute, and notarize it online through DocDraft if it does.

Colorado Requirements for Affidavit of Heirship

Colorado Twenty-Year Evidentiary Rule

Under C.R.S. Section 38-35-113, statements in the affidavit become prima facie evidence of heirship facts affecting title to real property only after the affidavit has remained of record for twenty years in the county where the real property is located. State plainly that the affidavit has no statutory evidentiary weight before that period runs.

Colorado Affiant Standard; Do Not Import the Joint Tenancy Rule

C.R.S. Section 38-35-113 sets no affiant qualification or count. If recorded as a title affidavit under C.R.S. Section 38-35-109(5)(a), the affiant must have actual knowledge and be competent to testify, under penalty of perjury. Secondary sources commonly cite a two-disinterested-affiant rule, but that requirement is at C.R.S. Section 38-31-103, belongs to the joint tenancy proof-of-death affidavit, and must not be stated as a requirement here.

Colorado Real Property Scope and Single-County Recording Venue

The affidavit affects title to real property only, under C.R.S. Section 38-35-113, and must be recorded in the county clerk and recorder's office of the county where the real property is situated, with no alternative domicile-county venue. Property in multiple counties requires recording in each county separately.

Colorado No-Transfer Disclaimer and Judicial Determination Alternative

State clearly that the affidavit does not transfer, convey, or vest title to real property, and that Colorado's mechanism for marketable title before the twenty-year period runs is the judicial determination of heirship under C.R.S. Sections 15-12-1301 to 15-12-1309, whose decree is conclusive from entry and recorded like a deed of conveyance.

Does your Affidavit of Heirship need to be notarized in Colorado?

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Frequently Asked Questions

No. An affidavit of heirship does not transfer, convey, or vest title to real property in Colorado; C.R.S. Section 38-35-113 only makes it evidence of who the heirs are. Title on an intestate death passes by descent under the Colorado Probate Code, and the affidavit merely helps prove that fact later, once its statutory evidentiary effect has attached.

Twenty years. C.R.S. Section 38-35-113 requires the affidavit to remain of record for twenty years (7,305 days) in the county where the real property is located before its statements become prima facie evidence. An affidavit recorded today has no statutory evidentiary weight until then.

Colorado's heirship statute itself names no affiant requirement. If the affidavit is recorded as a title affidavit under C.R.S. Section 38-35-109(5)(a), it must be made by a person with actual knowledge of the facts who is competent to testify, under penalty of perjury.

No, although secondary sources commonly assume otherwise. That two-disinterested-affiant rule belongs to a different Colorado statute, C.R.S. Section 38-31-103, which applies only to proof that a joint tenant has died. It does not apply to an affidavit of heirship and does not establish who the heirs are.

Real property only. C.R.S. Section 38-35-113 gives prima facie effect insofar as the stated facts affect title to real property. Personal property, such as bank funds or safe deposit contents, is instead collected under Colorado's separate small estate affidavit statute, C.R.S. Section 15-12-1201, which cannot touch real estate.

The judicial determination of heirship, C.R.S. Sections 15-12-1301 to 15-12-1309, available starting one year after death. Its decree is conclusive as to the rights of heirs from the date of entry and is recorded with the same effect as a deed of conveyance from the decedent, unlike the affidavit's twenty-year rebuttable evidence.

In the office of the county clerk and recorder of the county where the affected real property is situated. Colorado gives no alternative domicile-county venue. Property spanning multiple counties needs the affidavit recorded in each one, and each county's twenty-year period runs from its own recording date.

No. Colorado's small estate affidavit under C.R.S. Section 15-12-1201 collects personal property, such as bank funds and tangible goods, under a value cap. An affidavit of heirship evidences who the heirs are for real property and does not move title; neither one can do the other's job.