As an estate planning and probate attorney, one of the most common questions I hear is about alternatives to formal probate or administration of a decedent’s’ estate. One of the most common alternatives is the Affidavit of Heirship.
An affidavit of heirship is exactly what it sounds like – an affidavit that names the heirs to a decedent’s estate and the property to be transferred to those heirs. It is most often used to pass title in certain property that requires a transfer of title, such as real estate and vehicles, and to cure problems in chain of title, like when a decedent died without a will or when a will was never probated and the heirs want to sell or transfer the property in question to a third party.
For an affidavit of heirship to be valid, it must be signed under oath by someone personally familiar with the decedent’s family and marital history (this is usually at least one of the heirs). Although statute does not expressly require that the affidavit also be signed by disinterested witness (persons who have no personal or financial interest in the outcome – usually close family friends or relatives who will not be heirs of the decedent), most title companies require the notarized signature of at least two disinterested witnesses, so any affidavit of heirship should have at least that number.
Once the affidavit is signed by all the necessary parties, it must be filed in the property records of the county in which the property is located or where the decedent was domiciled at the time of death.
The affidavit of heirship is a useful tool for small estates that do not meet the requirements for a small estate affidavit or when a formal administration is not practically or economically feasible.
As useful as an affidavit of heirship can be in the right situations, there are some things to keep in mind. First, an affidavit of heirship only becomes conclusive evidence of the heirs of a decedent’s estate when it has been on file with the county clerk for five years. This does not mean that an affidavit of heirship cannot be used to transfer title before then, just that it is not statutorily conclusive until five years have passed from the date of filing. Also, an affidavit of heirship does not affect the rights of any heirs or creditors who were omitted from the affidavit.
Lastly, an affidavit of heirship transfers various shares of a decedent’s estate to all of the decedent’s heirs. If the ultimate goal is to pass title of real property to one heir, all heirs must sign a separate deed consolidating their shares of the property with a single heir, which then in turn must also be filed in the property records of the county clerk.
If you have any questions about an affidavit of heirship or would like to discuss having one drafted, please feel free to contact us. Our information is in the description.
Our firm charges $395 plus filing fees to draft a Texas affidavit of heirship. Upon receiving payment and all information needed, we can generally prepare an affidavit of heirship on the same day or within one business day. Call us at (817) 677-1199 for more information.