First, we’ll begin by discussing a general situation in which a Texas affidavit of heirship is generally used.
In Texas, if a person does without a will and has property that does not specifically include provisions for joint tenancy with rights of survivorship language, there are potential issues as to which individuals now have good title to those properties and in what specific percentages. Generally, this type of property is referred to as heirship property in Texas. The legal issue with this type of property is that it is essentially unsellable as is. Furthermore, title companies will generally not insure title for heirship property until heirship issues are addressed and ultimately resolved.
In general, resolving heirship property issues is accomplished by a probate proceeding in probate court (if your county has one) or in county court, which results in the appoint of a personal representative of the original titleholder’s estate, and ultimately ends with a judgment by the court determining heirship of the property in question. (See Texas Estate Code Section 202). This method is generally the most expensive way to resolve heirship property issues.
However, a Texas affidavit of heirship can be used to cure heirship property issues, and is typically less expensive and formal than a heirship proceeding in a court. (See Texas Estates Code Section 203.002). After the successful execution of an affidavit of heirship, a curative deed can be drafted and signed by the surviving heirs in favor of the new sole owner of the property in question.
Even in situations where a decedent has a will, an affidavit of heirship may be used in certain situations. This is due to the fact that a Texas last will and testament is not a self-executing document regarding real property. Essentially, all a Texas will does is restate the decedent’s intent for their property. A will must be acted upon in some manner, such as a formal probate proceeding (that must be filed within four (4) years of the decedent’s death), or by means of recording a Texas affidavit of heirship. Either way, the result of these two options is to declare for the legal record the identity, bequests, and interests of the decedent’s heirs.
When is a Texas Affidavit of Heirship Available as an Alternative to Probate?
Generally, a Texas Affidavit of Heirship is used in circumstances where the decedent did not leave a valid will, the only property that needs to be transferred to heirs is real estate, no formal probate administration is necessary, and the decedent does not have any outstanding debts. A Texas Affidavit of Heirship may still be used in circumstances where the decedent left a valid will and the heirs/beneficiaries all agree to disregard the will and proceed with a Texas Affidavit of Heirship as an alternative to formal probate. However, a Texas Affidavit of Heirship should not be used in circumstances where the decedent did not leave real property and the estate consists primarily of non-probate and non-real estate assets, such as bank accounts, etc.
Texas Intestate Secession
A common question we address at our office when preparing a Texa Affidavit of Heirship is how does property get split percentage-wise when a decedent dies without a will. The answer is found in Chapter 201 of the Texas Estates Code, and your mileage may vary, depending on the whether the decedent was married, had children of the marriage at the time of death, or had children of a previous marriage/relation before death. This specific information is of particular important to drafting a thorough and correct Texas Affidavit of Heirship in order to reach a well-reasoned conclusion regarding the identity of the heirs and their perspective interests in the decedent’s property.
Generally, when a person dies without a will in Texas, the rules of intestate secession apply, according to Chapter 201 of the Texas Estates Code.
Intestate and Not Married
If the decedent died intestate and was not married, the property goes in equal shares to the decedent’s children, if any. If the decedent did not have children, the property goes in equal shares to the decedent’s parents. (See Section 201.001 of the Texas Estates Code).
For example, if Joe dies intestate, unmarried, but has 3 children, Joe’s children will take 33% share of Joe’s property.
Intestate and Married
If the decedent died intestate and was married, then Section 201.003 of the Texas Estates Code applies, which specifically deals with community property (since Texas is a community property state):
Section 201.003. Community Estate of an Intestate
(a) If a person who dies intestate leaves a surviving spouse, the community estate of the deceased spouse passes as provided by this section.
(b) The community estate of the deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(c) if the deceased spouse is surviving by a child or other descendant who is not also a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the deceased spouse’s children or descendants. The descendants inherit only the portion of that estate to which they would be entitled under Section 201.101. In every case the community estate passes charged with the debts against the community estate.
Essentially, Section 201.003 indicates that all community property of the decedent will pass to the surviving spouse if there are no children of the decedent or all of the children are of the marriage between the decedent and the surviving spouse. However, intestate secession becomes more difficult to interpret in blended families due to subsection (c) of Section 201.003. For instance, if you have a surviving spouse (second marriage of the decedent) and a child of the decedent’s first marriage, then the decedent’s community property will be split equally between the surviving spouse and the child of the first marriage. So, essentially 50/50. However, if there are multiple children of a previous marriage at the date of the decedent’s death, then the 50% attributed to the children must be split equally.
Texas Affidavit of Heirship Process
Curing title to heirship property without resorting to filing a Determination of Heirship proceeding in probate court is generally a two step process: 1) drafting the Texas Affidavit of Heirship; and 2) Preparing a Deed (generally, a Special Warranty Deed, or Deed without Warranties).
Drafting the Texas Affidavit of Heirship
Drafting a Texas Affidavit of Heirship is a thorough process that involves an attorney asking a series of probing questions in order to ensure that the affidavit’s contents are persuasive, admissible, and ultimately represent the truth and totality of the circumstances for purposes of obtaining title, passing inquiry by a title company, and representing the factual truth if litigation ensues.
If you search Google for terms such as “Texas Affidavit of Heirship forms” or “Texas Affidavit of Heirship sample,” you’ll find a number of legal services that want to provide you a free form in exchange for your contact information (to later solicit you for their services) or will allow you to complete the form, but will ask you to pay a fee before printing and/or saving the form. Let’s be honest for a moment. All of these form services are simply providing boilerplate forms that may work for your situation, but odds are, their interview form and/or process may miss crucial aspects that are necessary for you to correct your heirship property issues. Due to the varied requirements of individual title companies, the questions one internet legal service asks on their form may not be what is required for your title company.
Furthermore, from our firm’s research of some of these internal legal form service companies, many of the forms do not even reference the Texas Estates Codes (which consolidated the old Probate Code on January 1, 2014). It is highly unlikely any title company in Texas would recognize a Texas Affidavit of Heirship today that references the old Texas Probate Code, especially drafted after 2014.
Additionally, it goes without saying a great deal that using boilerplate forms from a legal form service company will not likely be very persuasive evidence in the event that litigation ensues regarding the heirship property. In short, forms may be good for getting a grasp of what a Texas Affidavit of Heirship requires, but internet forms should never be used for any important legal purpose.
Information an Attorney Needs to Draft a Texas Affidavit of Heirship
Accordingly, an attorney needs to ask the following basic information in order to begin working on a Texas Affidavit of Heirship:
- A thorough explaination of the decedent’s family history and particular circumstances (more on this in a moment);
- A copy of any existing recorded deed with the county property records in which the property is located;
- A copy of a title commitment, if available;
- Names and addresses of all relevant parties, such as heirs; and
- An explanation of ultimately what the client wants out of the transaction (Selling the property to a third party, consolidating title to one or more heirs, etc.)
Family Issues are Common
We commonly hear that heirs are not on speaking terms with their siblings, heirs have moved across the county and lost touch, and everything in between. In some particularly antagonistic cases, heirs refuse to sign a Texas Affidavit of Heirship unless they receive financial compensation for doing so. Many times, the process of resolving heirship property breaks down because heirs attempt to DIY the process by using incomplete or junk forms, which only prolongs the process to the irritation of an heir, and results in a more chaotic (and expensive) situation when an attorney is hired. In these situations, it’s not uncommon for an attorney to prepare a new Texas Affidavit of Heirship, prepare corrected deeds, and refile them.
That’s why it’s best to be upfront with your attorney if you decide to engage them early in the heirship property process. An attorney needs to know everything that might be relevant to resolving heirship issues, especially if one sibling or heir is particularly antagonistic to the process. And, if the decedent left a will, all heirs need to be on the same page and willing to bypass the traditional probate process in order to move forward with an alternative means like drafting a Texas Affidavit of Heirship.
Contents of the Texas Affidavit of Heirship
Specifically, Section 203.002 of the Texas Estates Code contains a recommended format for the Texas Affidavit of Heirship. However, strict adherence to this form is not required due to the fact that a title company’s underwriting policy drives the content of these affidavits. Thus, this is another reason that the “one-size-fits-all” internet forms do not work in all cases.
Under the Texas Estates Code, an affidavit of heirship must be signed under oath by two (2) disinterested witnesses. In Texas, a disinterested witness must be knowledgeable about the decedent and his/her family history, and be someone who will not directly benefit financially from the decedent’s estate. Important facts that are typically included in a Texas Affidavit of Heirship are:
- Date and Place of Birth of Decedent;
- Date and Place of Death of Decedent;
- Address of the Decedent at time of death;
- How long the affiant knew the decedent;
- Marital history of the decedent;
- Names, birth dates, and current addresses of any/all of the decedent’s children;
- Knowledge as to whether the decedent had any adopted children;
- Names, birth dates, and current addresses of any other surviving descendants (parents and siblings);
- Names, birth dates, and dates of death of non-surviving descendants;
- Names, current addresses, and contact information for other individuals who may now about the decedent and/or his/her descendants;
- Knowledge that the decedent died with/without a written Will;
- Knowledge that there has been no administration of the decedent’s estate (if true);
- Knowledge as to whether the decedent left any unpaid debts, federal estate taxes, and/or amounts subject to the Medicaid Estate Recovery Program; and
- A complete list of any real property owned by the decedent
Often, in addition to the Texas Affidavit of Heirship, title companies may require an original will to be attached (if the decedent died with a will), a statement indicating that all debts of the decedent are paid, including but not limited to, federal estate taxes and amounts due under the Medicaid Estate Recovery Program. Additionally, title companies may require a perjury clause that indicates the affiant understands and acknowledges that falsifying information on the Texas Affidavit of Heirship will subject them to criminal prosecution.
Ultimately, the job of an attorney drafting a Texas Affidavit of Heirship is to get as close as possible to the requirements of title companies, although it is virtually impossible to guarantee that a Texas Affidavit of Heirship written today will be accepted by any and all title companies at any and all times in the future. However, if a client wants a precise, consistent, and reliable result regarding heirship property, the best alternative is to file for a Declaratory Judgment with the probate court.
While individual title companies may vary in their requirements, the following is a list of requirements promulgated by American Title Company, a nationwide title company with a presence in the lower 48 states:
(1) the decedent must have died at least six months prior to the execution of the affidavit;
(2) a death certificate on the decedent must be furnished to the title company;
(3) the affidavit must be signed by at least two disinterested parties having personal knowledge of the family history of the decedent and having personally known the decedent for at least ten years (a disinterested party is one that will receive no benefit of any kind from signing the affidavit—so this would exclude a spouse or child of a person who expects to receive an heirship interest).
(4) in addition to bearing the signature of the affiant, the affidavit must also be executed by all adult heirs who are taking title pursuant to the intestacy statutes;
(5) if the disinterested parties are related to the decedent, then this must be disclosed;
(6) the title company’s examination of title cannot reveal any discrepancy with the facts asserted in the affidavit;
(7) if there is a will that has not been probated, it must be attached to the affidavit and must support the facts asserted in the affidavit; and
(8) 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.”
Once a Texas Affidavit of Heirship is properly drafted, executed, and filed with the deed records of the county in which the property is located, a title company examine will review all documentation before a deed transferring title can be executed. Generally, both heirs at law and any devisees (if a will is present) will be required to sign title transfer documents. It’s important to remember that a title company does not determine the interest owned by each heir (see the intestate secession section earlier for more information). However, the title company will likely mandate all required signers to execute a document designating the amount of proceeds that will be disbursed to each signer. This is an important step to establishing a contractual agreement between heirs before the actual title transfer occurs.
Drafting a Deed After Executing a Texas Affidavit of Heirship
The second step in resolving heirship property outside of the traditional probate process is drafting a deed to transfer the property to the new title owner. This process occurs after drafting, executing, and filing a Texas Affidavit of Heirship.
Generally, a deed is prepared to transfer title for one of the following scenarios:
- Deed transfer to focus title to a single heir (who then has the right to keep or sell the property); or
- Deed transfer to allow all heirs to convey the property to a third-party buyer (generally done when the heirs just want to sell the property and take an equitable split of the proceeds).
Texas Affidavit of Heirship Caselaw
Section 203.001 of the Texas Estates Code states, “the affidavit of heirship, having been on file in the deed records for more than five years, serves as prima facie evidence of the facts therein stated in a proceeding to declare heirship or in a suit involving title to real or personal property.” Furthermore, the Texas Appellate Court in Beaumont indicated that the filed Texas Affidavit of Heirship prevails unless other parties to the suit “produce summary judgment evidence sufficient to raise a fact issue on the matter.” See Jeter v. McGraw, 79 S.W.3d 211, 215 (Tex.App.–Beaumont 2002, pet. denied).
Essentially, the Texas Estates Code and caselaw indicates that once you file a Texas Affidavit of Heirship with the deed records of the county in which the decedent’s property is located, it becomes factual evidence of heirship after five (5) years, unless another party can prove with evidence that the contents of the affidavit of heirship are not true and correct.
If you would like more information regarding a Texas Affidavit of Heirship or probating a loved one’s estate, please feel free to contact our Houston probate lawyers at Fair and Fair, PLLC for a free initial consultation.