Hi, I’m Jean Fair with the law office of Fair and Fair, PLLC, in the great state of Texas. Today, I’m going to be answering one of the most common questions I receive, which is are there any alternatives to a formal administration of a decedent’s estate. And, the answer is yes, there are. One of the most common alternatives is the Affidavit of Heirship.
As its name implies, an Affidavit of Heirship is exactly that; it’s an affidavit that names the heirs of a decedent’s estate and describes the property that will be distributed to those heirs. It’s most often used to pass title in property where a transfer of title is required, like with real estate or vehicles. It’s usually used to cure problems in chain of title, like when a decedent died without a will or a will was never probated and now, the heirs have decided they want to sell the property in question to a third party.
For an Affidavit of Heirship to be valid, it must be signed and notarized by someone personally familiar with the decedent’s family and marital history. This is almost always one of the heirs. Now, although the statute on Affidavits of Heirship doesn’t expressly require that it also be signed by two disinterested witnesses. A disinterested witness is someone who can attest to the facts contained in the Affidavit of Heirship, but who won’t be receiving any benefit from it. However, most title companies won’t accept an Affidavit of Heirship unless it contains at least two notarized signatures from disinterested witnesses.
Once the Affidavit of Heirship is signed by all the necessary parties, it must be filed in the county where the property is located, or where the decedent was domiciled at the time of death. The Affidavit of Heirship is generally useful for smaller estates that don’t meet the requirements for a Small Estate Affidavit, another alternative to formal administration of a decedent’s estate, but when a formal administration still isn’t practical.
Although an Affidavit of Heirship can be useful in the right circumstances, there are some things to keep in mind. First, an Affidavit of Heirship is not conclusive evidence of heirship until it has been on file with the county clerk for at least five years. This doesn’t mean that you can’t use it to transfer title to property before at least five years passes. It just means that it’s not statutorily conclusive until five years from the date of filing. Also, an Affidavit of Heirship will not affect the rights of any heirs or creditors who may have been omitted from the affidavit. Lastly, an Affidavit of Heirship transfer various shares of the decedent’s estate to all of the decedent’s heirs at law. So, if the ultimate goal is to consolidate ownership of a certain piece of property with one heir, then all of the heirs will need to sing a separate deed transferring their shares of that property to that single heir. And, that consolidation deed will then in turn need to be filed in the property records in the county where the property is located.
If you have any questions about an Affidavit of Heirship, or think it may right for you, please feel free to contact us at at any time.