(Note: You can read this blog independently or follow along in a video presentation by clicking here).
An affidavit of heirship identifies the heirs of an estate to real property. It is signed by two disinterested witnesses who state, to their best knowledge, the marital status, children, and family of a decedent. It should also identify the property in question, that the decedent didn’t owe any debts, and whether the decedent had a will.
When a person passes away, their property is passed three ways: a will, a beneficiary designation, or a state’s intestacy laws.
Texas Estate Code Chapter 203.001 lays out a path to establish prima facie evidence for an estate’s heirs without a court proceeding. Prima Facie means evidence “sufficient to establish a fact or raise a presumption unless disproved or rebutted.”
In other words, an heirship affidavit after being filed in the deed records for five years will be presumed to be a fact until disproved or rebutted.
Can You Challenge an Heirship Affidavit?
Yes. But after five years, you have the burden of proving that the heirship affidavit is incorrect.
Will a title company accept an heirship affidavit? Most will. However, they will research to determine that the two disinterested parties who give the heirship affidavit testimony are not mistaken.
Who Can Be a Disinterested Witness?
An individual who can state:
- The decedent did not owe any debts;
- The identity of the family members and heirs of the decedent;
- The decedent died on a specific date and in a certain place.
The witness will not gain financially from the estate (most attorneys agree this also means does not indirectly financially gain from the estate like a spouse).
Requirements for an Affidavit of Heirship
The following should be considered when drafting an heirship affidavit:
- Property Description of the real property
- A statement that the deceased died with or without a will (if the decedent had a choice, all the beneficiaries in a will and the heirs under intestacy must sign a family settlement agreement to the real property). The will should be attached to the heirship affidavit and state that the heirship’s affidavit is subject to the family settlement agreement.
- List all the heirs’ names and addresses.
- List all other parties in interest to the property (for example, a life estate holder).
- The marital status and history of the decedent (a common mistake is not identifying if an individual was LEGALLY divorced. In Texas, bigamy is illegal, and all second marriages are legally null and void).
Do not sign an affidavit of heirship you know is incorrect; this can result in a $10,000 penalty plus damages to the individual harmed.
Two-Step Process: Affidavit, Then Deed
Affidavit of heirship, by themselves, do not cure title defects. There is a two-step process which needs to be followed:
- An individual with first-hand knowledge of the family history must sign the affidavit of heirship, and
- After the affidavit of heirship is filed. All heirs must sign a deed conveying the property to a buyer(s).
Three Common Mistakes That Can Cause Problems:
- Often escrow officers in a hurry to close will draft a deed and find out that they need to do an affidavit of heirship. They have the deed signed and executed and then create an affidavit of heirship. Texas Estate Code 203.001 lays out the process. The affidavit of heirship must first be completed.
- The deed MUST be signed and filed after the affidavit of heirship.
- The deed is usually a special warranty deed or deed without warranties. DO NOT do a quitclaim deed, which is to be avoided because title companies may not insure it.
- All heirs named in the affidavit (or their legal guardians) must sign the deed.
What If an Heir Won’t Sign?
An affidavit of heirship is a non-judicial process to establish heirs. If one heir is difficult, you will need to probate the estate and have a judge force the property’s sale and determine the heirs.
Do You Need Legal Assistance?
If you have additional questions about establishing an heirship affidavit or other matters related to estate planning, please reach out to Willingham & Galvan for help today. Our team of attorneys and staff have many years of combined experience that can help you achieve your goals for planning your estate.
Get in touch with us today by calling (214) 499-9647 or by completing our online contact form.