If you are trying to sell a house that you inherited, it is possible that you are considering signing an Affidavit of Heirship. An Affidavit of Heirship is an alternative to probate in Texas that is generally used when someone dies without a will, no probate administration has been completed, and the only asset of the estate is real property. In some cases, an Affidavit of Heirship can be a cheaper and less time-consuming alternative to probate. Today, we’ll discuss when an Affidavit of Heirship can be used, who needs to sign it, and generally, how they work.
How is an Affidavit of Heirship Different Than Probate?
An Affidavit of Heirship is not a formal court procedure like probate. Rather, it is an affidavit outlining the deceased person’s (“decedent”) family history and the identity of heirs. Nothing is filed in the Probate Court. Rather, the affidavits are filed in the public records of any counties in which the decedent owned property. Affidavits of Heirship are authorized by the Texas Estates Code and are often accepted by title companies in Texas as a link in the chain of title. Many heirs choose Affidavits of Heirship as a cheaper alternative to full probate or if more than four years have passed since the date of death, where probate may no longer be an option.
Who Needs to Sign the Affidavit?
An Affidavit of Heirship asks two “disinterested witnesses” to attest to the decedent’s marital and family history. A disinterested witness is someone who would not inherit anything from the estate and is not related to the decedent by blood or marriage. Most witnesses are family friends, neighbors, co-workers, or anyone who has known the decedent long enough to know the details of the decedent’s family. Additionally, many title companies require an Affidavit of Heirship to be signed by an heir in addition to the two disinterested witnesses. All of the witnesses must swear to the contents of the Affidavit in front of a notary.
What are the Requirements of an Affidavit of Heirship?
The document itself outlines the decedent’s marital history and must include any and all marriages (the date of marriage and the date the marriage ended by death or divorce). It must also list all of the decedent’s descendants, meaning all of the decedent’s children. This list will need to include any children who have passed away before the decedent did, and the legal names of their children. Please keep in mind that step-children are not considered heirs by Texas law.
Once signed, the Affidavit of Heirship will need to be recorded in the property records of the county where any real property is located. This Affidavit of Heirship can help provide a link in the chain of title, and, if properly drafted, often will allow the heirs to sell the real property.
While Affidavits of Heirship are a common alternative to a judicial determination of heirship, keep in mind that the purpose of an affidavit has limited use – usually only for the transfer of title to real property.
Each situation is different, and an Affidavit of Heirship is not appropriate for everyone. Contact an attorney with the Kazi Law Firm to determine whether an Affidavit of Heirship is best for your situation.