Texas heirs can sometimes file an affidavit of heirship in lieu of probate when a loved one dies without a will. Filing is subject to several rules.
When someone dies in Texas without leaving a will, heirs can sometimes file an affidavit of heirship in the county records as an alternative to the expensive process of participating in a probate court hearing. Filing is subject to several rules, but it's not complicated.
Texas Intestacy Laws
State intestacy laws determine who inherits property when someone dies without a will. If a spouse and children survive in Texas, they share in the estate. In other family situations, the spouse and the deceased person's parents may share the estate if no children survive, or the deceased's siblings or distant relatives would inherit if no spouse, children or parents survive. In complex cases, the probate judge makes the determination of heirship after a court hearing.
The Affidavit of Heirship
If the deceased person's estate consisted only of real estate, the heirs can file an affidavit of heirship in the county records rather than probate the estate. The affidavit is a sworn, written statement of facts about the deceased person's heirs that can be used to clear title to the property, making it possible for the rightful heirs to sell the property. Without recording the affidavit and a new deed, the deceased person continues to hold title to the property, making it impossible to sell.
The Content of the Affidavit
The Texas Estates Code provides that the affidavit document must be titled, "Affidavit of Facts Concerning the Identity of Heirs," and it must include identifying information about the person signing the document as well as the deceased person's spouse, children, parents and other possible heirs. The person making the affidavit must have personal knowledge of the deceased's family history, and he must state that the deceased person left no will, owned a share of real property and left no unpaid debts or taxes.
Witnesses to the Affidavit
The person who signs the affidavit, called the affiant, must have firsthand knowledge of the facts. Since this person is likely to be a family member, the title company may require two or three disinterested witnesses to sign the affidavit as well. Disinterested witnesses are anyone who is not an heir of the estate and could not possibly inherit from the deceased without a will. The Texas Estates Code also requires that the affiant sign the document in the presence of a Texas notary.
Filing the Affidavit
The affidavit of heirship must be filed in the records of the county in which the property is located. Filing fees and rules vary from county to county. In some, you'll have to provide extra copies of the affidavit and a self-addressed, stamped envelope. Others include the cost of copies and postage in their fees.
The Effect of Filing
If the purpose of the affidavit of heirship is to clear title to the property it can be sold, the heirs can prepare and sign over a deed to the buyer after the affidavit has been filed. If the property is not sold, anyone with knowledge of the facts can challenge the affidavit until the document is on file for at least five years. Potential heirs not listed on the affidavit can file a claim in the probate court at any time.