What Is an Affidavit of Heirship for a House in Texas?
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When a family member dies without leaving a Will, an affidavit of heirship can allow you to sell a house without going through probate. Going through the entire probate process in court can be costly and take much time.
This article will review the benefits and requirements of using an affidavit of heirship vs. probate court when transferring the title of real property owned by a decedent to their heirs.
Key points from this article:
- Affidavit of Heirship as an Alternative – An affidavit of heirship is a legal document that allows for the transfer of real property from the deceased to their heirs without going through the probate process, saving time and money.
- Requirements and Process – The affidavit must be filled out by two disinterested parties who knew the deceased and their family history, and it must be filed with the county deed records where the property is located.
- Avoiding Probate – Probate can be a costly and time-consuming process, involving legal fees, court appearances, and other hassles. An affidavit of heirship is a quicker and less expensive alternative.
- Legal Changes in 2023 – A new law in 2023 allows lawyers to file an affidavit of heirship signed by a witness, instead of requiring witnesses to provide testimony in court, simplifying the process and reducing costs.
Disclaimer – The information on this page is intended for general informational purposes only and not to provide legal advice.
What is the purpose of an affidavit of heirship, and how does it work?
An affidavit of heirship is a legal instrument used when someone dies (the decedent) with real property titled in their name but did not have a Will. It is also sometimes referred to as an affidavit of death and heirship. It transfers the property's title from the decedent’s name into their heir's name without having to go through probate.
This document ensures the legal transfer or clean chain of transfer of the property's title. Title companies require a clean train of title transfer to insure the property for sale, and most title companies will accept an affidavit of heirship.
After the affidavit is signed and executed, it is filed or recorded with deed records in the county where the decedent's real property is located. This recording serves as evidence on the property's history once it's been on file for five years, according to Texas Estates Code sections 203.001 through 203.002.
When is an affidavit of heirship used?
An affidavit of heirship cannot be used if the decedent had a Will that was probated in court or if there was another type of court determination regarding the decedent's estate. It's commonly used with small estates, such as where a parent passed away without a Will, and their heirs want to sell the primary residence that was titled in the decedent’s name.
Another situation where one would want to use an affidavit of heirship is, for example, Mom died ten years ago. All of her community property was transferred to Dad per Texas intestate succession law, and her estate never went through probate. Now, Dad needs to sell the house. An affidavit of heirship would allow him to sell a home without needing probate.
Why do people try to avoid probate?
One would want to avoid probate because it can be an expensive and lengthy process. It involves costly legal fees, court appearances, and other hassles and expenses.
Can an affidavit of heirship transfer title in Texas?
After the affidavit is drafted, executed, and filed, the deed transfer gives the title ownership to a single heir who can keep or sell the property (though keep in mind if the deceased held a mortgage, it will need to be paid or refinanced); or to multiple heirs to sell the property and split the proceeds from the sale. Or the heir(s) may sign conveying the title to a third-party buyer.
This deed is usually a special warranty deed or deed without warranties, but not a quit claim deed, which most title companies will not insure. All heirs named in the affidavit (or their legal guardians, if under age 18) must sign the deed. Both the affidavit and the deed are filed with the county's real property records where the home is located.
Who can fill out an affidavit of heirship form in Texas?
The Texas affidavit of heirship form is filled out on behalf of the decedent's heir(s) by two disinterested parties who know the necessary details about the decedent's family. Those who fill out the form cannot receive any financial benefit from completing the form. Additionally, a licensed and registered notary public must sign the affidavit.
What must be included in an heirship affidavit?
While the Texas Estates Code Section 203.002 provides a recommended format for the affidavit, it is the individual title company being used for the transaction that determines the criteria for providing title insurance. Title insurance protects against financial losses that can be caused due to defects in the property's title. You can learn more about title insurance here.
Below is a complete list of items required in the Texas Estates Code and additional items that title companies generally require:
- Name and address of the affiant, who is the person making the sworn statement to the facts provided in the affidavit
- Decedent’s birthdate and place of birth
- Decedent's date and place of death, and address at the time of their death
- How long the affiant knew the decedent
- Decedent’s marital history
- The names of the decedent's children and their descendants, birthdates, and current addresses
- Whether the decedent had any adopted children
- The names, birthdates, and current addresses of other surviving descendants, such as the decedent’s parents and/or siblings
- The names, birthdates, and dates of death of non-surviving descendants
- The names and contact information of others who have personal knowledge of the decedent and his or her descendants
- Whether the decedent died without leaving a written Will
- Whether there has been no administration of the decedent's estate
- Whether the decedent left behind any unpaid debts or inheritance taxes
- A list of all real property owned by the decedent
Title companies' underwriting requirements may also include the following for affidavits of heirship:
- The decedent must have died at least six months before the execution of the affidavit.
- The decedent’s death certificate must be furnished to the title company.
- The affidavit must be signed by at least two disinterested parties having personal knowledge of the decedent’s family history and have known the decedent personally for at least ten years. A disinterested party is someone who receives no benefit from signing the affidavit, so this would exclude a spouse or child of a person who expects to receive an heirship interest.
- In addition to the affiant's signature, it must be executed by all adult heirs taking title according to intestacy succession (see more on this below).
- If any of the disinterested parties are related to the decedent, this must be disclosed.
- The title company's examination of the title cannot reveal any discrepancy with the facts asserted in the affidavit.
- If the decedent had a Will that was not probated, it must be attached to the affidavit. It must support the facts stated in the affidavit.
- The following paragraph must be included:
“I am aware of the penalties of perjury under Federal Law, which includes the execution of a false affidavit, pursuant to 18 U.S.C.S., Section 1621 wherein it is provided that anyone found guilty shall not be fined more than $2,000 or imprisoned not more than 5 years or both. I am also aware that perjury in the execution of a false affidavit is a criminal act pursuant to Section 37.02 of the Texas Penal Code. Finally I am also aware that under Section 32.46 of the Texas Penal Code, a person commits an offense, if with intent to defraud or harm a person, he, by deception, causes another to sign or execute any document affecting property or service of the pecuniary interest of any person, and that an offense under such Section is a felony of the third degree which is punishable by a fine of $5,000 and confinement in the Texas Department of Corrections for a term of not more than 10 years or less than 2 years.”
Who has to sign an heirship affidavit in Texas?
All heirs and witnesses must sign the affidavit to heirship. Who precisely the heirs are in Texas varies by the decedent's family makeup at the time of their death under the state's intestate succession laws.
How heirs are determined under intestate succession and who gets what when someone dies depends on whether the decedent had a spouse, children, parents, and/or other close relatives when they died.
For instance, if the decedent had a spouse but no children, the spouse inherits everything. If they had children but no spouse, the children inherit everything. If they had a spouse and children, depending on if the children were with their spouse or not, determines the division of property. A full chart for different family situations at the time of the decedent's death can be found here.
Where can I get an affidavit of heirship form or template for use in Texas?
If you do a Google search for “Texas affidavit of heirship form,” you can find free forms available for download, including the two provided below. However, remember that these boilerplate forms may not meet the specific requirements of the title company you are working with.
- Texas Comptroller Affidavit of Heirship Form
- Affidavit of Heirship Form Generator from Rocket Lawyer
Who can witness an affidavit of heirship?
The witness cannot be an heir, a relative of the decedent, or have any interest in the estate. With an affidavit of heirship in Texas, the witnesses must swear that they knew the decedent for an extended period; the decedent did not owe any debts; the identity of the decedent’s family members and heirs; where and when the decedent died; and that they will not have any financial gain from the decedent’s estate.
Can an affidavit of heirship be contested in Texas?
In Texas, an affidavit of heirship can be contested by filing for a judicial heirship proceeding, a court-supervised process in which a judge determines who the legal heirs are of an estate. This process is used when there is a dispute over the heirs or the validity of the affidavit of heirship is questioned.
To start the judicial heirship proceeding, a petition must be filed with the probate court in the county where the decedent died, along with evidence and documentation submitted to support the heirship claim. The court then holds a hearing to determine the estate's legal heirs.
Do I need an attorney to draft an heirship affidavit?
Yes, you can certainly work with an attorney to prepare the form with you, as long as you provide them with all the necessary documentation. However, each title company determines what needs to be included per their underwriters. Therefore, they usually have their own heirship affidavit drawn up by their lawyers that adheres to their specific requirements.
Title companies typically provide their affidavit form for free or for a small fee when the situation requires it on a file they are closing. But the title company's lawyers do not represent you. If you have any questions about the heirship affidavit they provide, you should consult with an attorney.
How much does filing an affidavit of heirship cost in Texas?
The filing fees vary by county in Texas, but the cost of filing an affidavit of heirship ranges from $50 to $75, plus the fee to pay a notary public to witness the document signing.
Does an affidavit of heirship need to be recorded in Texas?
Yes, after the affidavit is signed and executed, it must be filed with the county deed records where the decedent's real property is located. The purpose of recording it with the county is so it can serve as evidence of the property's history once it's been on file for five years.
Are there limits to affidavits of heirship?
While affidavits of heirship are typically used as an alternative to probate to determine heirship, it is limited only to the title transfer of real property. Also, unlike probate, an affidavit of heirship is not conclusive; it's only considered a presumption. Therefore, it does not minimize the rights of an omitted heir or a creditor, and banks and some title companies may not always recognize it.
Can a lawyer file an affidavit of heirship form on behalf of a client in Texas?
A lawyer can advise on, review, and approve and heirship of affidavit form or prepare the form on your behalf, but it still must be signed and recorded by witnesses. Once completed, anyone can file the form in the county where the decedent owned the property in question.
How did the law change in 2023 for how lawyers can file an affidavit of heirship signed by a witness, instead of providing testimony?
The law changed in 2023 to allow lawyers to file an affidavit of heirship signed by a witness instead of witnesses having to provide testimony in court. Previously, lawyers were required to produce two disinterested and credible witnesses in court to testify about the decedent’s heirs, or they could testify via deposition on written questions, but that involved court reporters, time, and expense.
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If you're looking to sell a house complicated by heirship, probate, or a lack of Will upon a person's death, we can help. You can request a cash offer for your home here, and we can often help you sort out any probate or heirship issues that need to be addressed for selling the property.