Colorado Affidavit of Heirship

Introduction

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.

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.