How The State Defines an Affidavit of Heirship
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.
How to File an Affidavit of Heirship
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
Understanding The Effects of the Filing
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.
Bank Accounts, Stocks, Intangibles
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.
Hire an Attorney Who Understands Your Needs
While filling out a “simple” form may sound easy, preparing, signing, and recording an Affidavit of Heirship often involves legal hurdles and technical pitfalls. Without precise heirship information, your affidavit may be rejected by a title company or fail under court review.
If you or someone you know in San Antonio, TX is considering an Affidavit of Heirship, it’s essential to work with an experienced heirship attorney who understands the complexities of these filings. A skilled inheritance lawyer, inheritance attorney, or heirship lawyer will ensure every legal requirement is met, so your affidavit is accepted by both title companies and the courts. Don’t navigate this process alone—contact James P. Peterson, Attorney at Law, for 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.
