Washington Affidavit of Heirship and Lack of Probate Affidavit

Introduction

Key Things to Know

1. 1

   Washington's affidavit of heirship has a different name and lives in an unexpected chapter. The instrument is the lack of probate affidavit, defined at RCW 82.45.197(3)(b), and the statute sits in Title 82, which is excise taxes, rather than in the probate or conveyancing titles. Searching Washington law for an affidavit of heirship by that name will not find it, so work from the section number.

2. 2

   Title has already passed before the affidavit is signed, and the affidavit does not transfer it. RCW 11.04.250 provides that a decedent's title vests immediately in the heirs or devisees, and that no administration of the estate and no decree of distribution or other finding or order of any court is necessary to vest that title. The affidavit records who the heirs are. It does not convey, transfer or vest anything.

3. 3

   The heirs swear it themselves, and Washington asks for no disinterested witness. RCW 82.45.197(1)(g) calls for an affidavit from the heirs affirming that they are the sole and rightful heirs to the property, and (1)(f) gives a surviving spouse or surviving domestic partner the same route for a community property interest. The definition at (3)(b) requires only that the document be signed and notarized. No attorney, no personal representative and no uninterested third party is required.

4. 4

   Six contents are specified, and one of them catches people out. RCW 82.45.197(3)(b) requires the names of the affiants, their relationship to the decedent, the names of all other heirs of the decedent living at the time of the decedent's death, a description of the real property, whether the decedent left a will that includes a devise of real property, and any other information the Department of Revenue requires. The third item is the one to read twice: every other living heir must be named, not only the heirs who are signing.

5. 5

   Two county offices, in sequence, and the second one is not optional. The documentation goes first to the county treasurer of the county where the property is located, and RCW 82.45.197(2) then provides that it must also be recorded with the county auditor. The auditor is Washington's recorder of deeds, so this is how the heir identification reaches the land records indexed against the parcel. WAC 458-61A-202(6) states the same duty.

6. 6

   Washington sets no waiting period, which separates this from the state's small estate route. Neither RCW 82.45.197 nor WAC 458-61A-202 imposes any minimum time since death before the affidavit may be signed or recorded. Washington's waiting periods sit in a different instrument: RCW 11.62.010 requires forty days from death and a further ten days after written notice to the other successors. Those timings belong to the small estate affidavit, not to this one.

7. 7

   The evidentiary effect is real but narrower than in some states. No Washington statute declares a recorded lack of probate affidavit to be prima facie evidence of heirship or of marketable title. What the legislature has done is accept a recorded one as proof of an heir's ownership interest in real property in one named process: RCW 61.24.030(11)(b)(iv) lists it in the same enumeration as a probate order or finding of heirship issued by a court. That recognition sits inside the nonjudicial foreclosure successor in interest procedure, so treat it as a scoped recognition rather than a general rule of evidence.

Washington Requirements for Affidavit of Heirship

• Washington Names This a Lack of Probate Affidavit

  RCW 82.45.197(3)(b) defines the instrument as a lack of probate affidavit, a signed and notarized document declaring that the affiant or affiants are the rightful heir or heirs to the property. Washington has nothing captioned affidavit of heirship, so caption the document by the statutory term and cite the section. A county treasurer or auditor will recognize the statutory name.

• Washington Requires Every Other Living Heir To Be Named

  The third of the six contents in RCW 82.45.197(3)(b) is the names of all other heirs of the decedent living at the time of the decedent's death. This reaches beyond the people signing. List each living heir, and work from the class RCW 11.02.005 defines, since RCW 82.45.197(3)(a) borrows that definition of heir. A document naming only the affiants is short of the subsection.

• Washington Requires a Description of the Real Property

  RCW 82.45.197(3)(b)(iv) makes a description of the real property one of the six required contents. Copy the legal description character for character from the deed that put the property into the decedent's name rather than describing it from memory, and add the parcel number and street address so the treasurer, the auditor and the assessor can match the filing to the parcel.

• Washington Recording With the County Auditor Is Mandatory

  RCW 82.45.197(2) provides that the documentation provided to the county treasurer under this section must also be recorded with the county auditor. Two offices in sequence: the treasurer of the county where the property is located, then the auditor, who keeps the land records. WAC 458-61A-202(6) repeats the duty. Treating the recording step as optional leaves the heir identification out of the chain of title.

• Washington Sets No Waiting Period for This Affidavit

  Neither RCW 82.45.197 nor WAC 458-61A-202 imposes a minimum time since the death before this affidavit may be signed or recorded. Do not import the timings from Washington's small estate route, which is a different instrument: RCW 11.62.010 requires forty days from the death and ten further days after written notice to the other successors, and reaches personal property only.

• Washington Affidavit Does Not Transfer Title

  RCW 11.04.250 vests the decedent's real property title in the heirs instantly upon death and provides that no administration of the estate and no decree of distribution or other finding or order of any court is necessary to vest it. This affidavit therefore records who the heirs are and does not transfer, convey, or vest title. No Washington statute makes it prima facie evidence of heirship generally; the recognition at RCW 61.24.030(11)(b)(iv) is scoped to the nonjudicial foreclosure successor in interest procedure.