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Affidavits of Heirship: What They Are and How They can Help.

When an individual dies without a valid will in the State of Texas, normal procedure consists of an application for a Court to determine the heirship of that individual and the request for an order declaring said heirship. This is generally considered to be the most common means of transferring the decedent's property to his or her heirs. Texas law makes an exception, however, when (1) an individual's only asset upon death is an interest in real property, and (2) there are no outstanding debts besides those secured by the real property. In these situations, someone with knowledge of the decedent's family can file an Affidavit of Heirship. In many situations, this affidavit can be a cheaper and easier option for transferring real property interests than a full heirship proceeding.

Chapter 203 of the Texas Estates Code outlines the contents of a properly drafted and executed Affidavit of Heirship. In order to be effective, the affiant must swear and subscribe, before a licensed notary, that he or she is personally familiar with the family and marital status of the decedent. It must describe how long the affiant knew the decedent, who the decedent's children and spouse were at the time of death, whether a will was left or not, and a description of any remaining debts unpaid by decedent. Although not required, it is often prudent to include the signatures of 2 or more disinterested, attesting witnesses in the affidavit. Once properly drafted and executed, the affidavit should be filed in the deed records of the county in which the property is located.

Upon completion, the heirs are legally able to sell and convey the property. One efficient way to accomplish this is through the heirs consolidating title in a single individual. That individual can then proceed to convey the real property to a subsequent buyer. In the alternative, all the interested heirs can retain their conveying authority. In that case, any conveyance documents to third-party buyers must contain the signatures of all the interested heirs.

While the Affidavit of Heirship rout is generally touted as cheaper and quicker than probate proceedings, please note a few potential drawbacks: (1) An affidavit is not akin to a judicial order of heirship, so it may be vulnerable to challenges; (2) The affidavit does not become prima facie evidence (raising a presumption in favor of the affidavit's correctness) until it has been on file with the county deed records for at least 5 years; and (3) Although most banks and title companies will acknowledge Affidavits of Heirship as valid transfers from a title standpoint, there is no law guaranteeing such treatment. Individuals engaged with these establishments should be clear on the policies and procedures toward Affidavits of Heirship.

As any good probate attorney should tell you, an Affidavit of Heirship is not a one-size-fits-all approach to every situation involving the transfer of real property from a deceased individual. Instead, it should be viewed as one potential tool at your disposal. Only by speaking to a knowledgeable attorney and thoroughly discussing all you options will you be able to decide if an Affidavit of Heirship is right for you.


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