An affidavit can be used to allow you to sell your house without dealing with probate court. If a relative dies without leaving a last will and testament, the court process of probating a house can lead to unwanted expenses and time delays.
This process is an alternative and shortens the proceeding. Keep reading to find out the advantages and limitations of an affidavit or heirship vs. probate courts, when it comes to the transfer of title to real property owned by a descendant to their heirs.
Disclaimer: The information contained on this page is for informational purposes only. It does not constitute legal advice
How does this Whole process work
Affidavits of heirship are legal instruments that are used to document the death of someone who leaves behind real property in their name.
However, they didn’t have a will. Sometimes it is called affidavits of death or heirship. This document transfers the property’s title without the need to go through probate.
Remember probate is a process that transfers assets and property to the beneficiaries.
This document guarantees the legal transfer or clean line of transfer of the property’s title.
Title companies need a clear train of title transfer in order to insure the property. Most title companies will also accept an affidavit proving heirship.
Once the affidavit has been signed and executed, it’s filed or recorded in deed records of the county where the deceased’s real property is located.
After the property has been in existence for five years, the recording is used as evidence to document the property’s past.
What is the purpose of an Heirship Affidavit?
If the deceased had a Will (with or without any testamentary instructions) that was administered in court or another type of court decision regarding his estate, an affidavit stating heirship can’t be used.
This is often used for small estates such as when a parent dies without leaving a Will and the heirs wish to sell the primary residence in the decedent’s name.
An example of a situation in which one might want to use an Affidavit Of Heirship is when Mom dies ten years ago. The Texas intestate succession law transferred all of Mom’s community property to Dad.
Her estate was never subject to probate. Dad now needs to sell the home. An affidavit proving heirship would be sufficient to allow him to do so without probate.
Why Would Someone Want to Avoid Probate
Probate can be expensive and time-consuming. It can lead to expensive legal fees and court appearances. Most people want to avoid these hassles.
Is it legal to transfer Texas title using an affidavit of heirship?
The deed transfers title ownership to one heir. However, if the owner died with a mortgage, it must be paid or refinanced, pr to multiple heirs who can sell the property and share the proceeds. The heirs may also sign a deed conveying title to a third party buyer.
This deed can be a deed with warranties or a special warranty, but it cannot be a quitclaim which many title companies won’t insure.
The deed must be signed by all heirs (or the legal guardian if they are under 18). The deed and the affidavit are both filed with the county’s real estate records.
What are the Requirements
The Texas Estates Code Section 203.002 recommends a format for the affidavit.
However, the specific title company that is being used for the transaction determines the criteria for title insurance. Title insurance covers financial losses due to defects in the title.
Here is a complete list of items that are required under the Texas Estates Code, as well as additional items that are required by title companies.
- Name and address for the affiant. This is the person who makes the sworn statement regarding the facts in the affidavit.
- The birthdate and the place of birth for the decedent
- Date, place and address of decedent’s death.
- How long did the affiant know the decedent?
- The marital history of the descendent
- Names of any children or descendants of the deceased, birthdates, current addresses, and names
- If the decedent was a parent to any adopted children
- Names, birthdates and current addresses of any other surviving descendants, including the parents or siblings.
- Names, birth dates, and dates of deaths of all non-surviving descendents
- Contact information and names of other people who have personal knowledge about the decedent and his orher descendants
- Whether the decedent died before leaving a Will in writing
- Whether the estate of the deceased has been administered.
- If the decedent left any inheritance taxes or unpaid debts.
- A listing of all real estate owned by the deceased
The underwriting requirements of title companies may include the following:
- The death of the decedent must be within six months of execution.
- The Identity of the heirs should not be in dispute.
- The title company must receive the death certificate of the descendant.
- At least two parties must sign the affidavit, each having at least 10 years of personal knowledge about the family history. Disinterested parties are those who are not a beneficiary from the signing of the affidavit. This would exclude spouses and children of people who expect to inherit an heirship. A list of all assets must be included.
- It must be signed by the affiant, as well as all adult heirs taking title under intestacy succession (see below).
- It must be disclosed if any of the disinterested persons are related to the deceased.
- The title company could not examine the title to determine if there was any contradiction with the facts stated in the affidavit.
- Attach it to the affidavit if the Will of the descendant was not probated. It must be in support of the facts set forth in the affidavit.
Deception can result in jail time
It is generally not a good idea to lie in an affidavit of heirship, as it is a legal document that is intended to establish the legal heirs of a deceased person.
Lying in an affidavit of heirship could result in legal consequences, including criminal charges for perjury if the lie is discovered!!
In addition, a false affidavit of heirship could result in disputes over the distribution of the deceased person’s property and other assets, which could lead to costly and time-consuming legal proceedings.
It is always best to be truthful and accurate when completing any legal document, including an affidavit of heirship.
What Parties Must Sign
The affidavit of heirship must be signed by all heirs and witnesses. Texas’s intestate succession laws vary in Texas. The decedent’s family composition at the time of death will determine who the heirs are.
The intestate succession rules determine who inherits what and how they are distributed. It also depends on whether the descendent was married, had children or parents when they died.
If the descendent was married but had no children, then the spouse inherits all.
If they had children but no spouse, their children inherit everything. The division of property will be determined if they had children and a spouse.
This depends on whether the children were living with their spouse. provides a complete chart of different family situations at time of decedent’s death.
Where can I get a Texas heirship affidavit form
You can download the following forms below or do a search for “Texas Affidavit Of Heirship Form”. These boilerplate forms might not be compatible with the requirements of your title company.
Who can be a witness
Witnesses cannot be heirs, relatives, or owners of any estate interest.
In Texas, an Affidavit of Heirship must be signed by two disinterested witnesses, who are not related to the deceased or the heir.
Witnesses must sign an affidavit in Texas stating that they have known the deceased for a long time, that the descendent was not in debt and the identities of the family members and heirs of the descendent; and that the estate will not benefit them financially.
How can I get an attorney involved in the process
Yes. You can work with an attorney. Each title company that handles the sale of the property will determine what information must be included.
They usually have their own heirship statement that is prepared by their lawyers and that meets their requirements.
Title companies are more likely to provide their affidavit forms for free or a small fee if the situation calls for it.
The title company’s lawyers don’t represent you. You should speak with an attorney if you have questions about the heirship declaration they provide.
Is it necessary to record an affidavit proving heirship
Yes. After the affidavit has been signed and executed, it must then be filed with county deed records indicating the location of the deceased’s real property.
It is necessary to record it with the county so that it can be used as evidence about the property’s history after it has been on file for at least five years.
- The Affidavit of Heirship must be filed with the county clerk’s office in the county where the deceased person resided at the time of death.
- The Affidavit of Heirship must be notarized by a notary public.
- The office of the county clerk will record the instrument!
Any questions can be directed if you simply call the court and ask to speak with an administrator.
What are the limits Of the affidavit
Although affidavits are often used in place of probate to determine heirship they are limited to title transfers of real property.
An affidavit is not conclusive, but it can be used to support the presumption of heirship.
It does not negate the rights of any omitted creditors or heirs, and banks and title companies might not always recognize it.
Can an affidavit be challenged
Yes the can be challenged if there is evidence that shows the information in the affidavit is not correct. For example, if a person claims that they are an heir to the deceased party, but there is clear evidence that supports the contrary, this process can be challenged.
Many properties that are inherited through an Affidavit of Heirship are sold fast in Texas.
Frequently Asked Questions
There is no standard affidavit of heirship in Texas, but the requirements may vary depending on the purpose for which the affidavit is being used. For example, an affidavit of heirship may be required in order to transfer property after the death of the owner, or to claim an inheritance. The affidavit may need to be notarized, and it must be signed by witnesses who can attest to the identity of the heir.
In Texas, an affidavit of heirship must be signed by two disinterested witnesses. “Disinterested“ means that the witness cannot be related to the heir by blood or marriage, and cannot be a beneficiary or have an interest in the outcome of the affidavit.
An affidavit of heirship can be used to avoid probate if the Affidavit is filed before the death of the owner of the property. After the owner dies, the affidavit can be used to transfer title to the property to the heir without going through probate court.