In the state of Texas, whether a decedent leaves a will or not, those entitled to inherit the deceased person's real property can sometimes file an Affidavit of Heirship as an alternative to the expensive probate court process.
Once this legal document is signed and certified by a notary public, it can be recorded in the county deed records office of the property’s location. Fees for the document vary from county to county.
How Are a Decedent’s Assets Distributed?
How assets in an estate pass to others depends on whether the decedent left a will. If so, their property is distributed to the beneficiaries named in the will. A will in Texas must be filed in probate court within four years of the decedent's date of death. After that time, a will can be used only to prove title to the property.
Individuals who do not leave a will are said to have died intestate. In that instance, their assets are passed to their next of kin under Texas law.
Intestate laws in Texas are based on how closely related the decedent was to their heirs and if the property is personal property; real property (land and the structures on it); community (marital) property; or separate property. No assets will pass to an estate’s heirs until the probate court is certain that all of the assets have been identified and characterized correctly.
What Is an Affidavit of Heirship?
Texas Estates Code authorizes a legal document known as Affidavit of Heirship Concerning the Identity of Heirs. When a decedent leaves real property, an Affidavit of Heirship may be used to pass that property to their heirs. The document can also be used if a decedent left a will that was not probated within the required four-year period.
The Affidavit of Heirship is commonly used in probate court proceedings to establish the rightful heirs and to distribute the deceased person's assets. Before using an Affidavit of Heirship, heirs of the decedent must first prove their right to inherit from the estate with a death certificate, a court order, or other legal document.
Signing an Affidavit of Heirship in Texas
An affidavit of heirship includes information about the decedent, their relationship to the heirs, the names of the heirs and other relevant details. It is signed under oath by two disinterested witnesses who have personal knowledge of the decedent and their family history, but who will not financially benefit from the estate.
The disinterested witnesses can be friends of the decedent, but if there are no witnesses who are unrelated to the decedent, family members who will not financially benefit from the estate can also act as witnesses. This legal document must be signed in front of a notary public, who then certifies it.
Filing an Affidavit of Heirship in Texas
An Affidavit of Heirship is filed in the county deed records office of the property’s location. This legal document does not transfer the real property. According to Texas Estates Code, it becomes evidence regarding the property’s ownership once it has been on file for five years.
The process for filing an Affidavit of Heirship is similar from county to county, but the filing fees differ. The party filing the document should contact their local county clerk to inquire about filing fees. Generally, the first page of the document is priced higher than subsequent pages.
If an individual chooses to have an attorney's help to create the document, the attorney's fee will add to the overall cost. Some Texas counties allow a party to file two Affidavits of Heirship as a single document if the decedent and property descriptions are the same, which is less expensive than filing two separate documents.
Clean Chain of Title
An Affidavit of Heirship generates a clean chain of title to the decedent’s heirs. In Texas, a title company typically accepts the affidavit to show this chain of title so the heirs can sell the real estate if they choose.
Using an Affidavit of Heirship to Transfer Vehicles
Vehicles in Texas may need an Affidavit of Heirship if an estate has not gone through the probate process. To title and/or register an inherited vehicle in Texas, the applicant must submit certain documents to their county tax office:
- Vehicle title (if one exists).
- Evidence that the loan is fully paid via an original release of lien (if applicable).
- Application for Texas Title and/or Registration (Form 130-U).
- Authority to transfer ownership. For probated estates, an original or certified copy of Letters of Administration or Letters Testamentary; for non-probated estates, Affidavit of Heirship for a Motor Vehicle (Form VTR-262) with all signatures certified by a notary public.
- Gift Affidavit (if applicable).
- Applicant’s state-issued ID or driver license.
- Proof of current insurance policy (when registering the vehicle).
- Proof of vehicle inspection (when registering the vehicle).
- Applicable fee, which varies by county.
If there is more than one heir, each heir to the decedent’s estate must sign the Affidavit of Heirship and have their signatures witnessed and certified by the notary public. Each person can fill out individual affidavit forms.
- Texas Law Help: Real Property
- Texas Statutes: Estates Code Chapter 203 Nonjudicial Evidence of Heirship
- Tarrant County: Affidavit of Facts Concerning the Identity of Heirs (Texas Estates Code Section 203.002)
- Texas DMV: Application for Texas Title and/or Registration
- Texas DMV: Affidavit of Heirship for a Motor Vehicle
- Texas DMV: What Do I Need to Transfer Ownership From a Deceased Owner?
- Texas Law Help: Transferring Property After Death and Avoiding Probate Court
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.