When an individual dies without a will in the state of Texas and there isn’t a deed clarifying the existence of joint tenancy with right of survivorship, questions arise as to whom owns the title of the property. An affidavit of heirship is a document that “declares or identifies the heirs of a deceased person and is used to state ownership of real and personal property.”1 By using an affidavit of heirship, you may avoid the necessity of probate which may prevent conflict amongst heirs, holding costs, and additional attorney fees.
The State of Texas has elaborated in the Texas Estates Code about the specifics of affidavit of heirship and its properties by stating the following:
Sec. 203.001. RECORDED STATEMENT OF FACTS AS PRIMA FACIE EVIDENCE OF HEIRSHIP. (a) A court shall receive in a proceeding to declare heirship or a suit involving title to property a statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent as prima facie evidence of the facts contained in the statement if:
(1) the statement is contained in:
(A) an affidavit or other instrument legally executed and acknowledged or sworn to before, and certified by, an officer authorized to take acknowledgments or oaths, as applicable; or
(B) a judgment of a court of record; and
(2) the affidavit or instrument containing the statement has been of record for five years or more in the deed records of a county in this state in which the property is located at the time the suit involving title to property is commenced, or in the deed records of a county in this state in which the decedent was domiciled or had a fixed place of residence at the time of the decedent’s death.
(b) If there is an error in a statement of facts in a recorded affidavit or instrument described by Subsection (a), anyone interested in a proceeding in which the affidavit or instrument is offered in evidence may prove the true facts.
(c) An affidavit of facts concerning the identity of a decedent’s heirs as to an interest in real property that is filed in a proceeding or suit described by Subsection (a) may be in the form prescribed by Section 203.002.
(d) An affidavit of facts concerning the identity of a decedent’s heirs does not affect the rights of an omitted heir or creditor of the decedent as otherwise provided by law. This section is cumulative of all other statutes on the same subject and may not be construed as abrogating any right to present evidence or rely on an affidavit of facts conferred by any other statute or rule.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
In order for the affidavit to be effective, the affidavit must meet the 5 following requirements:
- Must personally know the descendant
- The date and location in which the descendant died
- The names of the descendant’s family and heirs
- Knowingly verify the descendant did not have any outstanding debts at the time of death
- & will not personally receive any financial benefits from the estate
Once the affidavit is filed, the parties may then distribute the property to the heirs, in accordance with their desires. To view the percentages for intestate succession, click here to view a visual representation of the percentages with compliments to Jefferson County Court.
Although the passing of a family member can already be a very difficult process, the Texas real estate lawyers at The Farah Law Firm will carefully draft an affidavit of heirship and take proper care in handling your deceased family member’s estate.
Content written by Mohammad Sultani