Why and How to Use an Affidavit of Heirship
When a loved one passes away without a will in place, distributing the estate can prove complicated.
In many cases, the estate of the deceased person may need to be probated, tasking the court with identifying heirs, ensuring the estate debts are paid, claims are resolved and any remaining estate assets are divided amongst the heirs. This can take up time and money that the estate may not have, it may be worth avoiding court intervention.
If the only estate asset remaining to be divided by heirs is real property, a title company will often permit the use of an affidavit of heirship to be prepared to resolve who the heirs of the estate are for purpose on conveying title to the estate real property to a third-party. When properly prepared, the affidavit of heirship provides the general public with notice of the heirs to the estate, and therefore the new owners of the deceased person’s real property. This is a way for real property to be transferred after a person dies without the court’s involvement.
What is an Affidavit of Heirship?
Under Texas law, the estate of a person who dies intestate (i.e., without a will) vests immediately in the person’s heirs at law. Texas Estates Code §101.001(b). An affidavit of heirship is a legal document recognized by law that identifies the legal heirs of a deceased person. When properly completed, this document should include all relevant information to determine the living heirs of the deceased person. It should also include how to contact them. Plus, it should cover details of the deceased person’s passing, including their date and location of death.
When filling out the forms needed to have this legal document prepared, you will need to include at least the following information about the deceased person:
- Last known legal residence. (even if they actually were living somewhere else, such as at a nursing home, or they were in the hospital.)
- Marital history. Including a complete list of all marriages (the name of the spouse, date of marriage, and how the marriage ended i.e., divorce or death)
- Family history, including a list of all children born to, or adopted, by the deceased person;
- Last will and testament details, or lack thereof;
- Outstanding debts of the estate;
- Physical property specifics (physical address, including county).
You may also need to include information about any other assets that are tied to the estate. It may be necessary to see obituaries from relatives in order to confirm some older heirship information. The obituary should have all the family ties detailed, helping decipher who the true heirs actually are.
Finalizing the Affidavit with Help from a Notary Public
To finalize this document, two disinterested witnesses will need to verify your claims of heirship. To be considered a disinterested witness, they must have zero rights to the estate. They must also not benefit from the conveyance of the real property in any way. The witnesses need to have known the deceased individual for around 10 years prior to the date of their death. People that are often used as these witnesses are long-time neighbors of the deceased person, members of their church or other social groups, cousins, or close personal friends.
Once the affidavit of heirship is completed, it will need to be signed by the person swearing to the truth of the information contained in the affidavit (known as the “affiant”) in front of a notary public, along with the disinterested witnesses. The Notary Public will verify the identities of the individuals prior to signing of the affidavit. In Texas, often the title company’s attorney prepares the affidavit once the information form is completed by the affiant. This can occur as part of preparation of the property for closing by a title company.
Other Elements Required to Use an Affidavit of Heirship
In addition to the completed and notarized affidavit of heirship, you will need a few other documents to move forward. Before processing the claim and transferring property, title companies typically need to receive an official death certificate along with the affidavit.
Potential Complications of An Affidavit of Heirship
Although the affidavit of heirship can prove who the true heirs are, this route is not always advisable. Factors that could complicate matters include:
- Possible existence of an unknown child of the deceased person
- Lack of communication between heirs
- The heirs lacking the ability to effectively collaborate
Estates with a significant value can also cause complications to arise, necessitating another approach.
So, if you are in doubt, call us at Harris Cook for assistance. We can provide guidance and support to figure out how to best prove heirship and handle the estate.