Austin: 512-910-8977 | San Antonio: 210-570-2458 Schedule an Appointment

Heirship Affidavit Texas

Two things must be true for an affidavit of heirship to be used. That is the decedent died without a Will and the decedent’s only asset when the decedent died was real estate. The real estate must not have been jointly owned and must only have the decedent’s name in the title. That kind of property is referred to as “heirship property”, and it will not be insured or sold until the decedents name is removed from the title. Of course, the only debts that exist must have been secured by real estate in this situation.

How An Affidavit Of Heirship Works

Without a Will, it can be challenging to determine how property should be transferred or distributed. But if the situation allows, an Affidavit of Heirship can be used to transfer title from the decedent’s name into the names of the loved ones or heirs of the decedent. The whole transfer happens without a probate court getting involved. With the name of the decedent removed from the title, the property can be insured for sales. The affidavit of heirship is a cheaper and quicker way to transfer property.

Challenges Of An Affidavit Of Heirship

Affidavit Of Heirship TexasAn affidavit simply identifies the deceased person’s family and the identity of heirs but does not conclusively determine the heirs. Since the heirs are presumed in an Affidavit of Heirship, it can be easily challenged in court by an omitted heir or a creditor of the decedent. This is probably why many banks and title companies do not recognize it as a valid transfer of title. You have to wait for 5 years for an Affidavit of Heirship to become a prima facie evidence of the facts contained in it. 

Requirements For An Affidavit Of Heirship

A loved one or heir of the decedent must file an affidavit of heirship with the county clerk of the counties in which the decedent owned property or resided at the time of death. The Affidavit of Heirship form you file must contain:

  • The decedent’s date of death
  • The names and addresses of all witnesses
  • The relationships the witnesses had with the deceased
  • Details of the decedent’s marital history
  • Family history listing all the heirs and the percentage of the estate they may inherit

The Affidavit of Heirship can only be effective if it has been taken before a notary public and signed by 2 people that are not beneficiaries of the decedent’s estate. Each of the 2 witnesses can be a person who knew the decedent or a family member with no interest in the property. The witnesses have to swear that based on what they know personally about the decedent and the decedent’s family, the people listed in the document are in fact the decedent’s heirs.

You should consult an experienced estate planning lawyer before you choose to use an Affidavit of Heirship. The reason for this is that there may be other alternatives that can suit your situation better than filing an Affidavit of Heirship.

 

You may also be interested in…

  1. Including Your Dog In Your Will
  2. Main 3 Reasons Not To Use Online Legal Services For Estate Planning
  3. Good Reasons To Draft Your Medical Power Of Attorney