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 the post, we’ll discuss when an Affidavit of Heirship can be used, who needs to sign it, and generally how they work.
When Can an Affidavit of Heirship be Used?
Affidavits of Heirship are most often used in Texas when a person (the “decedent”) passes away without a will and the only estate asset is real estate. 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. It is wise to consult with a probate attorney to determine if an Affidavit of Heirship is the best option for your particular situation, as they do not work well when there are assets other than real estate or when the heirs cannot agree on selling the real property.
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 are usually family friends, neighbors, church friends, 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?
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 names of their children. Something to remember, “children” refers to adopted children as well as natural born ones; yet, 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.
What are the Limits?
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 transfer of title to real property. Unlike a judicial proceeding to declare heirship in the probate court, an Affidavit of Heirship is not a conclusive determination of the heirs. It is only a presumption. Also, an Affidavit of Heirship does not affect the rights of an omitted heir or a creditor of the decedent and may not be recognized by banks or even some title companies.
While an Affidavit of Heirship may not be the perfect fit for everyone, in the right circumstances it can a great alternative to going through a probate. Nielsen Law PLLC provides family-focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For help with estate planning for student-athletes, please contact our office to schedule an appointment.