Affidavits of Heirship 101

Non-Probate Transfers of Real Estate in Texas Using the Affidavit of Heirship

When an individual passes away in Texas, their estate typically must go through the legal process called probate. Probate is when the court makes sure that the deceased party’s property and possessions are passed on to the correct people, and any debts or tax obligations are paid off. If there is a will, the probate process will ensure that the will is valid and the correct person carries out its instructions. Probate can be time-consuming and costly to administer, with or without a will. The estate absorbs the costs, but in the case of more modest estates, it can eat into what little is left. If an individual dies without a will and their estate consists mostly of real estate, using an affidavit of heirship can allow it to pass to heirs without going through the formal probate process.

What is an Affidavit of Heirship?

When a person who owns real estate dies, that property cannot be sold or transferred until their name has been removed from the title of the property. If the deed has not provided for transfer upon the owner’s death, an affidavit of heirship can be used to establish the new ownership of the property. An affidavit of heirship is a sworn statement legally identifying the heirs of the deceased individual. Filing an affidavit of heirship can allow the title of real estate to be transferred from the deceased party’s name to the names of the heirs without going through the probate process. This will provide a clean chain of title transfer and is far less costly and time-consuming than probate.

When Can an Affidavit of Heirship Be Used?

When an individual dies without a will, an affidavit of heirship may be the best option for transferring title. This is providing that the deceased was the sole owner of the property and that the deed made no specific reference to its distribution upon death, such as joint tenancy with the right of survivorship language. In this case, as heirship property, real estate can then be legally passed on to the heirs of the deceased or sold. Although an affidavit of heirship does not transfer the actual title to the property, it is the first step in the process.

Who Can File an Affidavit of Heirship?

An affidavit of heirship must be executed by someone with personal knowledge of the deceased party’s family and marital history. It must be made under oath and signed before two witnesses and a notary. Once heirs are established, a deed transfer can be made to the heirs named in the affidavit or to someone who is purchasing the property. Both the affidavit and the new deed will be recorded in the county property records where the real estate is located, and the new ownership is established.

Getting Legal Assistance

Of course, this is a simplistic version of what happens when real estate gets transferred using an affidavit of heirship. Sometimes heirs are located in different areas of the country, and some may be difficult to locate. Real estate resolutions can be complicated after the death of a loved one, and trying to resolve them without the help of a Texas real estate lawyer can result in issues with the title and unnecessary costs. If a loved one has died leaving a piece of real estate and you have questions about how it can be resolved, contact the Law Offices of Ryan Reiffert, PLLC to schedule an appointment. We would be happy to answer your questions and discuss your needs.