When a loved one dies without a will, often referred to legally as dying intestate, that person’s estate will normally have to go through the probate process or through an administration for the assets to be distributed to heirs. If there is no will probate proceedings can take months or even years.
Is there an alternative to going through probate if the decedent never signed a will and the only assets are property and motor vehicles?
In some cases, you can file what is called an Affidavit of Heirship to pass ownership of the decedent’s real property to the rightful and legitimate heirs.
If you live in or around San Antonio, Texas, or nearby like in Boerne, New Braunfels, Seguin, Floresville, Jourdanton, Hondo, or Bandera, and you have lost a family member who never properly signed and executed a will, come see or contact James P. Peterson, Attorney at Law. He will guide you through the process of securing ownership of real property by preparing and filing an Affidavit of Heirship.
Unfortunately, people sometimes put off estate planning. No one likes to think about death, but being proactive can make matters easier on loved ones and relatives by leaving behind a will or other estate planning documents.
Many families find themselves in a situation where someone has died who did not leave a valid will. This can leave your loved ones with untold amounts of stress as they try to decide exactly how to proceed.
There is a legal alternative to avoid the decedent’s estate from going through probate court proceedings. Texas Estate Codes sections 203.001 through 203.002 allow the option of filing what is called an Affidavit of Heirship, or Affidavit of Heirship Concerning the Identity of Heirs. This document, according to the Texas Estate Codes, shall serve as prima facie evidence “concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent….”
An Affidavit of Heirship concerns real property that is not subject to joint ownership with the right of survivorship. If any property is held jointly, it may pass to the surviving owner without being probated. If the property is held solely in the name of the decedent, and the decedent has left no will, the matter may have to be probated unless an Affidavit of Heirship is filed.
Until the real property goes through probate or passes to heirs through an Affidavit of Heirship, that property is basically unsellable. It is non-transferable.
Also, an Affidavit of Heirship will cover and pass title to mobile homes and motor vehicles. Different forms are necessary for the transfer of those assets without probate proceedings.
The Affidavit of Heirship must be properly executed (signed)and filed in the county where the property is located. If multiple counties are involved, then an affidavit must be filed in each county. A family member should seek the help of an attorney experienced with Affidavits of Heirship to ensure compliance with all aspects of the filing.
The affidavit must be executed by someone who knew the decedent, but is not an heir or close family member of an heir. In other words, it can be a friend, coworker, neighbor, church member, or even a family member who does not benefit from the affidavit. The affidavit must be signed before a notary public by two disinterested witnesses. The witnesses must have known the decedent, but they cannot stand to benefit financially from the filing of the affidavit
The Affidavit of Heirship provides “prima facie evidence” of the person or persons who stand to inherit the property. The legal effect of the affidavit of heirship is to create a clear chain of title transfer to the decedent’s heirs.
After the Affidavit of Heirship is complete, your attorney can prepare a deed or assignment transferring title among the named heirs if some heirs do not want their share. Once filed with the county clerk, the Affidavit of Heirship will enable the heirs to sell and transfer the property.
An Affidavit of Heirship does not pass title or transfer ownership of the estate's bank accounts, stocks, and other accounts with financial institutions. Joint accounts and accounts made payable upon death (P.O.D. accounts) are usually not part of the estate.
But if the estate has substantial assets with financial institutions, then the heirs will be required to file and prosecute an Application for Determination of Heirship. This case is usually joined with an Application for Letters of Administration. Such proceedings are expensive, but the Affidavit of Heirship is the foundation of an Administration if an Administration is warranted. Letters of Administration allow the Court Appointed Administrator (usually but not always an heir), to access accounts with financial institutions.
Though filling out a “simple” form sounds easy enough, the process of preparing, signing, and recording an Affidavit of Heirship is often subject to various legal hurdles and pitfalls. If it is not completed with specific enough heirship information it may not be accepted by a title company or even survive a court review.
If you or someone you know is considering an affidavit of heirship, you need the help of an experienced, knowledgeable attorney who can understand the unique needs of your situation and meet all legal requirements to ensure your affidavit of heirship is accepted by a title company and the courts. Don’t face this challenge on your own. Call or reach out to James P. Peterson Attorney at Law to get the guidance you need.
If you want to start your case now, then download the Client Information Sheet, print it, complete it, and send it to my office. I will call you when I see it, so we can begin right away.
If you live in San Antonio, Boerne, or New Braunfels, Texas, or nearby, and have a loved one who died without a will, consider an affidavit of heirship, and rely on James P. Peterson, Attorney at Law for reliable legal guidance. He has helped countless clients like you with their heirship challenges. Contact him today for an initial consultation. He will advise you on the proper path forward and help you with any filings you wish to make.