Avoiding Probate Court (Series I) - Affidavits of Heirship: Considerations and Concerns

When a loved one passes away the process to pass property and assets according to estate documents and Texas state law is often difficult and overwhelming. Gathering all of the required documentation and determining when or if to initiate court proceedings is not a simple task. Although formal court proceedings are typically required in order to properly transfer property after death, avoiding probate court and formal court proceedings is possible under applicable circumstances. Over the course of a series of three blogs titled “Avoiding Probate Court” you will learn about ways a loved one’s property may pass onto their heirs without the need for formal court proceedings.

An affidavit of heirship is typically used as an alternative to estate administration when a decedent dies without a will and when the estate consists primarily of real property. It is most commonly used when a decedent’s heir wants to sell, refinance a mortgage on, or claim title to the decedent’s real property and it is necessary to provide documentary evidence of the heir’s title. The affidavit does not convey title; it is simply evidence that title was transferred to the heir by operation of law. In order to convey title to property, a probate of the estate or a determination of heirship proceeding must be initiated.

An affidavit of heirship must be signed and sworn to before a notary public by two disinterested witnesses who knew the decedent. The disinterested witnesses must be someone who knew the decedent and was familiar with the decedent’s family history. The disinterested witness can be a friend of the decedent, a friend of the family, or a neighbor, but it cannot be an individual who will directly benefit from the estate financially.

Once prepared and signed by all required parties, the affidavit of heirship must be filed with the real property records in the county where decedent was domiciled or had a fixed place of residence at the time of death or in the county where the land is located. The affidavit can be recorded any time after the decedent’s death. The filing fees vary from county to county.

An affidavit of heirship has many advantages. No court proceeding is required to complete an affidavit of heirship. They are quicker and less expensive than a proceeding to determine heirship or to probate a will because no court proceeding is required. There is also no statutory deadline in which to file an affidavit of heirship. As mentioned above, the affidavit can be recorded any time after the decedent’s death.

Although advantageous under certain circumstances, affidavits of heirship also have many disadvantages. An affidavit of heirship is not conclusive evidence unless it has been in the deed records for five years or more and acceptance of an affidavit of heirship is discretionary. An affidavit of heirship is rarely accepted by anyone other than a title company. Most financial institutions or policy holders do not accept an affidavit of heirship and require a proceeding to determine heirship or probate. An affidavit of heirship also has no effect on omitted heirs and creditors. An omitted heir can still assert a claim to estate property that has been transferred based on an affidavit of heirship and a creditor can still assert a claim for recovery of property delivered or purchased from an heir as provided by law.

If you need assistance preparing an affidavit of heirship or would like to discuss the intricacies related to such document or whether an affidavit of heirship can be achieved given your circumstance, the attorneys at Waldron & Schneider are here to assist.

The legal information in this blog entry is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, nothing contained in this article is intended to create an attorney-client relationship with any reader. This article and website are made available by Waldron & Schneider for educational purposes only and to give basic information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and Waldron & Schneider. The article and website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. For more information or questions you can contact us and one of our attorneys will be in touch soon.
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