The “affidavit of heirship” is one of the primary alternatives to a full probate in Texas. it can provide an effective means for transferring real estate or, when used in combination with other options, avoiding probate altogether.
The affidavit of heirship does not transfer title or have any impact on non-real estate assets. It also does not have any impact on the decedent’s debts, including debts secured by the real estate. The affidavit just memorializes the transfer of the real estate.
An “affidavit of heirship” is legal document that is filed into the local real estate records. The document serves as legal proof that real estate was transferred to one or more heirs when the decedent died.
The key word in the prior sentence is “heirs.” The heirs are those who inherit if the decedent died without a will (or had a will, but the will was not probated). The affidavit of heirship records the family history in sufficient detail to allow readers to know who inherited the real estate under Texas intestacy laws (note, there is also a heirship proceeding that can be done in court to have the court enter findings as to who the heirs are–which can be useful if there may be a dispute as to who are heirs).
We have a page in this book that explains the Texas intestacy laws and who inherits what. In applying these rules, nuances matter. It matters whether the decedent was survived by a spouse, whether there are surviving children born outside of the last marriage, whether the property was community or separate property, etc. This is why the seemingly simple affidavit of heirship is in fact not simple. If these details are missed, the affidavit may be invalid. Worse yet, it may cloud legal title and, if time passes, it may be difficult to fix. This is why we always recommend that a Texas-licensed attorney draft or at least review and edit these affidavits.
The affidavit of heirship is used when:
The affidavit may also be used when a probate is expected, but the parties need access to the real estate sooner. Probate is slow. The affidavit is not. So parties may file an affidavit of heirship to get title to the real estate and then sell the property to raise funds to do the full probate, etc.
The Estates Code sets out several requirements for these affidavits. Here is an abbreviated list:
This is in addition to providing sufficient information to identify the decedent, the date of death, that that the decedent was a resident of the county, that the decedent owned property in the county, and the full relationships between the decedent and his or her heirs under Texas intestacy laws.
The affidavit of heirship provides many of the benefits of a full probate as to real estate, including the following:
Also, if the affidavit is on file in the county for five years or more, it is presumed to be correct. This is the primary benefit of these affidavits and why they are accepted as a cheaper way to transfer title to real estate.
The affidavit of heirship is easy to obtain. There is no court filing or waiting for a probate court judge to approve the affidavit. You just need to hire an attorney and have them prepare the affidavit, have the proper parties execute the affidavit, and then file the affidavit in the real property records.
There is another procedure for handling estates when there is no need for a full probate. It’s called the “order of no administration.” Let’s consider that option next. Click here to continue reading. >>>>
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