Upon a decedent’s death, Texas law provides that the lawful heirs become the legal owners of the decedent’s property. In the absence of a probate, how can third parties determine whether the heir is the rightful owner of the decedent’s property? You can find the answer in the affidavit of heirship.
An affidavit of heirship contains facts about a family history, genealogy, marital status, or the identity of the heirs of a decedent.
In itself, an affidavit of heirship is not an alternative to probate. Rather, it is an option to consider when probate is not necessary.
As a result of the affidavit, the heir is likely to have some claim to the decedent’s property, even though a probate had not been opened.
Affidavits do not actually transfer property. It simply serves as proof that property passed by operation of law without a probate.
An affidavit constitutes prima facie evidence of the facts stated and should be accepted by the courts if it was filed for five years or more at the appropriate county clerk’s office.
When there are no unpaid debts and no other reason to file for probate, the affidavit of heirship is used.
The affidavit is often required by a third party before transacting business with the heir as property owner. An affidavit of heirship may be required by title companies to issue title insurance on real estate, and banks and financial institutions may require an affidavit to recognize the heir as the owner of the decedent’s account.
An affidavit of heirship can be used when there is no will or if there is a will but all beneficiaries agree not to probate it.
A full probate provides the same certainty as an affidavit of heirship. The discovery of an unknown will may result in the probate of the will and divesting transferees of the decedent’s property.
The affidavit of heirship also does not protect against other heirs who later claim to have an interest in the decedent’s property.