Affidavit of Heirship

When someone dies without a Will (“intestate”) and the heirs want to transfer title to the decedent’s property, this may be completed by preparing and recording affidavits of heirship. Generally speaking, the affidavits of heirship outline the family history of the decedent including the identity of the decedent’s heirs. The Texas affidavit of heirship must also set forth each heir’s percentage of ownership in accordance with the Texas Probate Code.

The end result of an affidavit of heirship is similar to probating a Will as a muniment of title when a will exists. However, the affidavit of heirship does not involve the probate courts and thus, if available, can be completed relatively inexpensively.

It should be noted that an affidavit of heirship is not considered prima facie evidence of the facts therein until 5 years after the date it was recorded. Although a title company may honor an affidavit of heirship before the expiration of five years after the date of recording, there may be certain situations that require a more costly judicial determination of heirship.

Requirements

An affidavit of heirship is only avialable if the decedent died without a Will (or the property in question was not otherwised addressed in a valid Will). The affidavits of heirship must be signed by two disinterested witnesses (i.e. two people that are familiar with the family history of the decedent and do not stand to gain financially from the estate).

An Affidavit of Heirship is Useful When:

No Will exists;
The decedent’s estate consists only of real property and/or vehicles.

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