Kentucky Affidavit of Heirship

Introduction

Key Things to Know

1. 1

   In Kentucky, this affidavit works only when the ancestor died without a will. KRS 382.120(1)(e) requires the affidavit to state the fact that the ancestor died intestate, which makes intestacy an element of the filing. If the ancestor left a will, this affidavit does not apply; the route instead is recording a certified copy of the will and the order of probate under KRS 394.300.

2. 2

   Kentucky's statute never uses the words affidavit of heirship or affidavit of descent. County clerks administratively call this KRS 382.120 filing an affidavit of descent, and some also accept it under the name affidavit of heirship. There is no separate statute for an affidavit of heirship in Kentucky; the name is a label, not a distinct filing.

3. 3

   Unlike every other state surveyed, this affidavit is mandatory, not optional. KRS 382.120(3) provides that no county clerk may receive or permit to be lodged for record any deed to inherited real property until the affidavit has been presented. Most states let an heir choose whether to record one; Kentucky does not give the heir that choice.

4. 4

   This affidavit confers no evidentiary effect under KRS 382.120, and it does not transfer, convey, or vest title to real property. The statute contains no prima facie rule, no conclusive-after-years rule, and no notice rule for the affidavit itself. It documents who the heirs are for the deed records; the statute does not make it proof of heirship in court.

5. 5

   Kentucky requires only one affiant, and the grantor, the most financially interested person in the transaction, may serve as that affiant. KRS 382.120(1) permits the affidavit of the grantor, or of any one heir at law or next of kin, or alternatively of two residents of Kentucky who each have personal knowledge of the facts. A two-disinterested-witness rule is underwriting convention some title companies use elsewhere, not a requirement of Kentucky's statute.

6. 6

   File this affidavit with the county clerk of the Kentucky county where the real property is situated; there is no domicile-county alternative. KRS 382.120(2) requires the clerk to record and index it in the general index of deeds, naming the ancestor as grantor and each heir at law or next of kin as grantee, the same way a deed from the ancestor to the heirs would be indexed.

7. 7

   Kentucky sets no waiting period, but it does set a deadline running the other way: the affidavit must reach the clerk at or before the time the heir's deed is filed. A deed recorded without it first is still valid; the safe-harbor clause in KRS 382.120(3) preserves that recording, and the sanction falls on the clerk instead. Knowingly making a false affidavit under KRS 382.120 is a Class A misdemeanor and creates civil liability to anyone injured by it, under KRS 382.990(1)-(2).

Kentucky Requirements for Affidavit of Heirship

• Kentucky Mandatory Recording Precondition

  KRS 382.120(3) provides that no county clerk may receive or permit to be lodged for record any deed to inherited real property until this affidavit has been presented. Kentucky is the only state surveyed where the affidavit is compulsory rather than optional.

• Kentucky Confers No Evidentiary Effect

  KRS 382.120 contains no prima facie rule, no conclusive-after-years rule, and no notice rule for the affidavit itself. It is a recording precondition and an indexing entry, not a statutory proof of heirship.

• Kentucky Intestate-Only Availability

  KRS 382.120(1)(e) requires the affidavit to state that the ancestor died intestate, making intestacy an element of the filing. Where the ancestor left a will, the route is recording a certified copy of the will and the order of probate under KRS 394.300.

• Kentucky Single-Affiant Rule, Grantor Permitted

  KRS 382.120(1) allows one affiant, the grantor or any one heir at law or next of kin, or alternatively two residents of Kentucky with personal knowledge of the facts. A two-disinterested-witness rule is underwriting convention some title companies use elsewhere, not a requirement of this statute.

• Kentucky Recording and Indexing

  File with the county clerk of the Kentucky county where the real property is situated. KRS 382.120(2) requires recording and indexing in the general index of deeds, naming the ancestor as grantor and each heir as grantee.

• Kentucky Affidavit Does Not Transfer Title

  This affidavit documents who the heirs are and allows the heir's deed to be recorded and indexed. It does not transfer, convey, or vest title to real property.