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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 full probate process in court can be costly and take much time. This article will go over the benefits and requirements of using an affidavit of heirship vs. probate court when it comes to transferring the title of real property owned by a descendent to their heirs.
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 who has real property titled in their name, but they did not have a Will. It is also sometimes referred to as 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 the Texas Estates Code chapter 203.001.
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 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 descendent’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 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 that most people would want to bypass.
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 quitclaim 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.
What must be included in an heirship affidavit?
While the Texas Estates Code Section 203.002 provides a recommended format for the affidavit, it’s 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 full list of items required in the Texas Estates Code and additional items which are generally required by title companies:
- 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
- Date and place of death of the decedent, and their address at the time of their death
- How long the affiant knew the decedent
- The descendent’s marital history
- The names of the decedent’s children and any of 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 descendent’s parents and/or siblings
- The names, birthdates, and dates of death of non-surviving descendants
- The names and contact information of others that have personal knowledge of 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 descendent’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 descendent’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 also be executed by all adult heirs who are 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 descendent 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, is dependent on if the descendent had a spouse, children, parents, and/or other close relatives when they died.
For instance, if the descendent 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 some 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 descendent, 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 descendent did not owe any debts; the identity of the descendent’s family members and heirs; where and when the descendent died; and that they will not have any financial gain from the descendent’s estate.
Do I need an attorney to draft an heirship affidavit?
Yes, you can certainly work with an attorney. However, each title company handling the sale of the property determines what needs to be included per their underwriters. Therefore, they usually have their own heirship affidavit that has been drawn up by their lawyers, that adheres to their specific requirements.
Title companies will 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.
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 on 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.
Contact us for a cash offer
If you’re looking to sell a house that is complicated by the issue of 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 to sell the home.