Affidavit of Heirship

Texas Affidavit of Heirship

Texas law provides that the lawful heirs take title to the decedent’s property immediately upon the decedent’s death.How do third parties know that the heir is the rightful owner of the decedent’s property when a probate is never opened? The affidavit of heirship can provide the answer.

About the Affidavit of Heirship

A document that provides information about a family’s genealogy, marital status, or the identity of the heirs of a decedent is an affidavit of heirship.

As a whole, an affidavit of heirship is not an alternative to probate. Rather, it is an alternative that can be used when probate is not necessary. 

Even if no probate was opened, the affidavit serves as evidence that the heir has some ownership claim to the deceased’s property. 

Property is not actually transferred through the affidavit. In essence, it serves as proof that property passed by operation of law without probate.

If the affidavit is filed with the appropriate county clerk’s office for five years or more, it can be accepted as prima facie evidence of the facts stated.

When is the Affidavit of Heirship Used?

The affidavit of heirship is used when the decedent had no unpaid debts and there was no other requirement that probate be filed. 

Before a third party transacts business with the heir as owner of a property, an affidavit is often required. Banks and financial institutions may require an affidavit of heirship for the purpose of issuing title insurance for real estate and title companies may require one to establish the heir as the owner of a decedent’s account.

When a decedent did not leave a will or if there was a will and all the beneficiaries agreed not to probate the will, an affidavit of heirship can be used.

Disadvantages of the Affidavit of Heirship

A full probate provides the same level of certainty as an affidavit of heirship.  Unknown wills may be discovered and probated, divesting the transferees of ownership of the decedent’s property. 

Additionally, the affidavit of heirship does not prevent other heirs from claiming an interest in the decedent’s property.

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In the San Antonio-metro area or the surrounding communities, do you need assistance with a probate matter?  Our probate attorneys have extensive experience representing clients in probate cases. 

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