Dying without a will often causes problems for heirs especially when trying to sell real estate where the buyer is requiring title insurance. Generally, these issues are resolved by a probate proceeding in court, which appoints a personal representative and determines heirship. Yet, this process can be expensive.
One of the most cost-effective methods of remedying these issues involves using an Affidavit of Heirship. An Affidavit of Heirship is used to establish a clear chain of title when the only asset of the estate is real property. After successfully executing an Affidavit of Heirship, a deed can be drafted and signed by the heirs to the new sole owner of the property.
The Affidavit of Heirship describes family history and names the heirs in accordance with the Texas Probate Code. When a person dies without a will in Texas, the rules of intestate succession apply in accordance with Section 201 of the Texas Estates Code. The answer varies depending on whether the deceased was married at the time of death, had children of the marriage, or had children outside of the marriage at the time of death.
Once the Affidavit of Heirship is properly drafted, it must be signed under oath by two disinterested witnesses (that do not directly benefit financially from the decedent’s estate) knowledgeable about the family history. The Affidavit of Heirship is then filed in the deed records of the county where the property is located. After the Affidavit of Heirship is filed, a deed can be prepared to transfer the property to a new owner.
To prepare an Affidavit of Heirship, an attorney will need information from you about the Decedent's family history including, but not limited to:
· Date and place of birth of Decedent
· Date and place of death of Decedent
· Address of Decedent at time of death
· How long affiant knew Decedent
· Marital history of Decedent
· Names, birth dates, and current addresses of any of the Decedent’s children
· Names, birth dates, and current addresses of any of the Decedent’s other surviving descendants such as parents and siblings
· Names, birth dates, date of death, and current addresses of any of the Decedent’s non-surviving descendants
· Knowledge that Decedent died with or without a will
· Knowledge that there has been no administration of Decedent’s estate
· Knowledge as to whether there are any unpaid debts
· Knowledge of the real property owned by Decedent
Also, although Section 203.002 of the Texas Estates Code recommends a format for an Affidavit of Heirship, it is important to note that a title company’s policy may differ, and it is the title company’s policy that will prevail. It is impossible to ensure that the Affidavit of Heirship will be accepted by any and all title companies, but it is the most cost-effective way to attempt to do transfer real property when a person dies without a will.
In addition, unlike a judicial proceeding to declare heirship in probate court, an Affidavit of Heirship is not a conclusive determination of the heirs, only a presumption.
This process is a practical method to resolve issues when the decedent dies without a will, but it is not appropriate in all situations. Call our office today at 903-716-6668 to schedule a consultation and determine if an Affidavit of Heirship is best for your situation.