BlogAffidavits of Heirship

May 8, 2023 / David Goodhart / 0 Comment

Affidavits of Heirship

When a loved one passes away, the answer to the question of who gets the decedent’s stuff is not so obvious if the loved one died without a Last Will & Testament. If I had a dime for each time a surviving spouse said they automatically inherited their spouse’s interest to their estate simply by virtue of being married to them, I would be a rich man. Truth: it is not automatic. And the reason why is because Texas’s default rules of intestate succession (the rules regarding who gets your stuff when you die without a Will) are funky and depend on the family dynamic. If your loved one owned lots of stuff, you’ll almost assuredly have to go to the probate court for what we call the Texas Two-Step: (1) conduct an heirship hearing to formally determine who are the heir according to Texas intestacy law; and (2) conduct a separate hearing to appoint an Administrator who will divide the decedent’s estate amongst the heirs established at the earlier heirship hearing. However, if the decedent’s estate is small, leaving say, only their homestead, one of my favorite title-clearing tools is the use of an Affidavit of Heirship. And Affidavit of Heirship is a sworn document signed in front of a notary public that sets out the family history of a deceased person. The primary purpose of an Affidavit of Heirship is to let the county know who, according to Texas’s laws of intestate succession, should inherit the decedent’s property described in the Affidavit.  While the Texas Estates Code provides an example of what the Affidavit should contain, I will warn you now that this form will not be acceptable by a title company because it omits several items that are relevant for proper title transfer. It is extremely important to have an Affidavit of Heirship prepared by a title professional. I prepare several a week on average and the form I use is available for sale on Title companies also usually require the Affidavit be signed by three people: one person who is a close family relative, usually the surviving spouse or child, and two disinterested people who are also familiar with the facts contained in the Affidavit. Once recorded, the Affidavit is usually sufficient to clear title and allow a transaction to close. If you had a loved one who passed away without a Will, reach out to me to see if an Affidavit of Heirship is appropriate for you.

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David Goodhart