The Texas Probate System – Not Always The Goal
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 not a Will, the Probate Court will review the family history of the deceased and make a determination as to who the heirs are. Then, the court will appoint an administrator to gather the assets of the estate, pay its liabilities, and distribute the remainder according to Texas law (this is called an “intestate administration” or an “heirship”). If there is a will, the probate process will verify the will and appoint the person specified therein as the executor of the Estate, with a mandate to carry out the Will’s instructions (this is called probating the will).
If there is not a Probate Court in your county, this function may be carried out by a county court or a county court-at-law or other applicable court. In Bexar County (San Antonio), there are two statutory Probate Courts.
While probating of a will is (in general) considerably less expensive than an intestacy, it can nonetheless be expensive. Accordingly, there are times that you may wish to avoid the probate process entirely
. One of the ways you can do so is through the Affidavit of Heirship.
Non-Probate Transfers of Real Estate in Texas Using the Affidavit of Heirship
As discussed above, probate can be time-consuming. While these costs will generally be borne by the estate itself, in the case of a small or modest estates, it is possible that an intestate administration would present an unacceptably high cost. The Texas legislature, realizing the dilemma that so many people were presented with, devised a solution – the Affidavit of Heirship!
If an individual dies without a will and their estate consists entirely of real estate, using an affidavit of heirship can allow that real estate 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.
You should take care, however, to only rely on the Affidavit of Heirship when the inheritance is quite clearly defined/noncontroversial. This document creates only a presumption
of title. This presumption can be rebutted or attacked. Therefore, in the case of an inheritance that may potentially be subject to a dispute, or a situation where the inheritance or identities of the heirs is unclear, you should consider opting for an intestate succession in order to protect your heirship determination from future attack. This consideration can be thought of, in some ways, as tying to the value of the property – extremely valuable pieces of real property are probably more likely to be subject to inheritance attack or controversy in the future.
When Can an Affidavit of Heirship Be Used?
An Affidavit of Heirship is appropriate when three conditions are met:
- The deceased’s only property was a piece of real estate
- The deceased left no will
- There is no controversy or dispute as to inheritance/the identities of heirs (and/or the property is relatively modest in value)
When an individual dies under these conditions, 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.
Who Can File an Affidavit of Heirship?
An affidavit of heirship must be executed by TWO DISINTERESTED WITNESSES
with personal knowledge of the deceased party’s family and marital history. It must be made under oath and signed before a notary. In this case, “disinterested” means that the witness will not benefit financially from the estate.
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.