It happens all too often; a loved one unexpectedly dies without leaving a will. For those left to deal with the deceased person’s estate this can be a real estate nightmare. Without a surviving grantee or other survivorship language included in the deed the property becomes what is often called, “Heirship Property” or “Heir Property”. More often than not, the survivors of the deceased have no idea what to do with the heirship property and without taking the proper steps to properly vest title in the heirs there isn’t much that can be done as the property is virtually unsellable as it sits and title companies will not issue insurance until the issue is resolved.
Fortunately, there are a couple ways to resolve the issues surrounding the heirship property. The first is to have a county judge determine the heirs through a probate proceeding. The second, and more cost efficient option, is utilizing an Affidavit of Heirship along with a deed conveying title to the heir or heirs. This article will focus on the use of the Affidavit of Heirship.
An Affidavit of Heirship is essentially an instrument containing the deceased individual’s family history and other circumstances that help identify his/her heirs. Texas Estate Code §203.003 provides a recommended format for Affidavit of Heirship, but does not require strict adherence. The Texas Real Estate Attorneys at The Farah Law Firm, P.C. use a format of the Affidavit of Heirship that they have developed over the years that clearly and efficiently identifies the heirs using the intestate succession rules provided by the Texas Estates Code. We strongly discourage the use of “online” affidavit of Heirship forms that if used, can cause irreparable harm to the title of the property. Affidavits of Heirship must be carefully tailored to the family and property at issue.
Once prepared, the Affidavit of Heirship (and deed) must be filed in the Real Property Records of the County in which the property lies. Generally, the information presented in the Affidavit of Heirship is presumed to be true after it has been on file for five or more years.
The creation of an Affidavit of Heirship can be a confusing and time consuming procedure. The use of online real estate forms should never be used as they oftentimes do not meet statutory requirements and can often result in incorrect vesting of the property, along with addition costs and headaches for the heirs. The Texas Real Estate Attorneys at The Farah Law Firm, P.C. have years of experience creating and implementing Affidavits of Heirship. Dealing with Heirship Property is difficult; let The Farah Law Firm counsel you regarding your individual situation and needs. Help is only a phone call away.