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Sometimes, when people die without leaving a Will, it is not necessary to go through a full probate process in court to distribute the decedent’s property. There are less costly alternatives that family members can use, depending on the type of property that was left. An Affidavit of Heirship is generally used when someone dies without a Will and the estate consists primarily of real property titled in his or her name. It can also be used when more than four years have elapsed since the decedent passed away.
On this page, we will discuss Affidavits of Heirship and how they generally work in Texas. If you are in the Austin and Pflugerville areas and have questions about Affidavits of Heirship, contact Austin probate lawyer Farren Sheehan for an initial consultation.
What an Affidavit of Heirship Does
An Affidavit of Heirship transfers title from the decedent’s name into the names of the heirs without having to go through the probate process. When a decedent leaves real property in his or her name, it is important to ensure that title passes legally. The legal effect of the Affidavit of Heirship is that it creates a clean chain of title transfer to the decedent’s heirs. Title companies will require clean title to insure property for sales, and most real estate and title companies in Texas will accept Affidavits of Heirship. Affidavits of Heirship are much less expensive and quicker for title transfer to real property compared to a probate proceeding.
An Affidavit of Heirship is filed and recorded with the deed records in any counties where the decedent owned real property or where the decedent last resided. For example, if a person dies having owned property in Cedar Park or Round Rock, his family members would file an Affidavit of Heirship in Travis and Williamson Counties to transfer the title to the property.
Requirements for an Affidavit of Heirship
An Affidavit of Heirship or Affidavit Concerning Identity of Heirs is authorized by the Texas Estates Code. Essentially, the affidavit is a legal document that must be signed by a person with personal knowledge of the decedent’s family and marital history. The affidavit includes facts that are signed as true by the affiant, made under oath, before a Notary Public. It is wise to hire a probate attorney to help with drafting this document, as it should be filed in the proper county public deed records and contain the requisite information for a proper transfer.
Texas law requires that the Affidavit of Heirship be signed under oath by two disinterested witnesses. To be a disinterested witness, one must be knowledgeable about the decedent and his or her family history, but not someone who will benefit financially from the estate. Essentially, each witness will testify that they knew the decedent and that the decedent owed no debts at time of death, as well as the date and county of death and the identity of family members.
Facts that are important to include in the Affidavit of Heirship are:
- The date and place of birth of the decedent
- The date and place of death of the decedent, and his residence and address
- How long the affiant knew the decedent
- The marital history of the decedent
- The names of the decedent’s children and any of their descendants, birth dates, and current addresses
- Whether the decedent had any adopted children
- The names, birth dates, and current addresses of other surviving descendants, such as parents and siblings
- The names, birth dates, and dates of death of non-surviving descendants
- The names and contact information for others that may know about the decedent and his or her descendants
- That the decedent died without leaving a written Will (if that is true)
- That there has been no administration of the decedent’s estate (if that is true)
- Whether the decedent left unpaid debts or inheritance taxes
- A list of any real property owned by the decedent
The Limits to Affidavits of Heirship
While Affidavits of Heirship are the most commonly used alternative to a judicial determination of heirship, keep in mind that the purpose of an affidavit such as this is limited to uses such as transfer of title to real property. Unlike a judicial proceeding to declare heirship in probate court, an Affidavit of Heirship is not a conclusive determination of the heirs, only a presumption. Also, an Affidavit of Heirship does not affect the rights of an omitted heir or a creditor of the decedent and may not be recognized by banks or even some title companies.
Contact Sheehan Law, PLLC Today
Each situation is different, and an Affidavit of Heirship is not appropriate for everyone. You may want to consider an Affidavit of No Probate. Austin probate attorney Farren Sheehan can help you determine whether an Affidavit of Heirship is best for your situation, and can help you draft the document to ensure proper transfer of title. Contact our offices today for an initial consultation.