When Should You Use an Affidavit of Heirship?
An Affidavit of Heirship, also called an Affidavit Concerning Identity of Heirs, is a legal document that can be used to transfer title to a loved one's property if he or she died without a will and their estate consists mostly of real property. It can also be used when a person dies and leaves a will that was not properly admitted to probate. An Affidavit of Heirship creates a clean chain of title from the deceased to his or her heirs. It is a less costly alternative to the sometimes lengthy and expensive probate process.
What is Required for an Affidavit of Heirship?
Because you are trying to prove that you are a rightful heir to the deceased, the Affidavit of Heirship should be signed by two witnesses (aka “Affiants”) that are knowledgeable about the deceased person's family history but who are not going to benefit financially from the estate. Also, an Affidavit of Heirship is an affidavit, and like all other affidavits the two witnesses must sign and swear to its contents under oath before a notary public. These witnesses may be friends of the decedent, an old family friend, or a neighbor, or in cases where there are no friends or neighbors a family member may sign. However, he or she should be someone who will not get anything financially from the estate. Since the law requires each person to sign a separate Affidavit of Heirship, there will usually be two Affidavits of Heirship.
Where is the Affidavit of Heirship Filed and What is its Effect?
The Affidavit of Heirship is filed, or “recorded”, with deed records in the county where the decedent's real property is located or where he or she last lived. It does not transfer title to real property, but the Texas Estates Code says it becomes evidence about the real property once it has been on file for five years. The legal effect of the Affidavit of Heirship is that it generally creates a clean chain of title for transfer to the decedent's heirs. There are some title companies who will not accept the Affidavit of Heirship to show the chain of title to real property, so the heirs should check with their title company to be sure.
If the property being transferred crosses any county lines, the two witnesses need to sign a separate Affidavit of Heirship for each county represented. There is a filing fee for the affidavit that varies from one county to another, but you can contact the county clerk to find out the amount of the fee. Additionally, some counties may allow the two Affidavits of Heirship to be filed as one document if the property descriptions and the decedent are the same.
Although the Affidavit of Heirship does not transfer title, once it is drafted, executed, and filed, all the heirs named in the Affidavit of Heirship, or the legal guardians of any heirs under 18, can sign a new deed for the real property, which will transfer ownership to the heir(s).
What Goes in the Affidavit of Heirship?
Some critical facts that should be included in an Affidavit of Heirship include the following:
- The decedent's marital history.
- The decedent's birthdate and birthplace.
- The decedent's residence, and date, and place of death.
- Whether the decedent had any adopted children.
- The names of the decedent's family members and heirs, and current addresses, and dates of birth for each.
- A list of the properties owned by the decedent.
- The names, dates of birth, and death of non-surviving descendants.
- The names and contact information of others with knowledge of the decedent's family.
- Whether the decedent died without leaving any written will.
- Whether there has been any administration of the decedent's estate.
When signing the Affidavit of Heirship, the witnesses must swear to the following conditions:
- That they knew the decedent and for how long.
- The decedent did not owe any debts.
- The true identity of the family members and heirs.
- The person died on a certain date in a certain place.
- The witness will not gain financially from the estate.
There may be other requirements needed to satisfy a title company, so it is a good idea to coordinate with, or have your attorney coordinate with, the title company in the process of drafting the Affidavit of Heirship.
Are There Limitations to the Affidavit of Heirship?
Yes. The Affidavit of Heirship is generally limited to the transfer of title of real property, and it is considered a presumption. As discussed above, this means it is not conclusive proof of a real property transfer, so it does not minimize the rights of an heir or creditor that was not named in the affidavit, and some title companies or banks may not recognize it. It also cannot be used if there are debts owed by the estate.
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