Affidavit of Heirship
A sworn legal document used to establish ownership of property when someone dies without a will (intestate). It identifies the deceased's heirs and their relationship, allowing property to transfer without formal probate.
Understanding Affidavit of Heirship
An affidavit of heirship is a cost-effective alternative to probate for transferring real property from a deceased owner to their heirs. It's particularly useful when the estate consists primarily of real property and the heirs agree on the distribution.
The affidavit must be signed by disinterested witnesses—people who knew the deceased and their family but don't stand to inherit. These witnesses attest to the family history, marital status, and identities of all potential heirs. The document is then notarized and recorded in the county deed records.
While an affidavit of heirship is simpler and cheaper than probate, it has limitations. It doesn't provide the same legal certainty as a court order. Title companies may require the affidavit to be on record for a certain period (often 5 years) before insuring title based solely on it. Some title companies won't accept affidavits at all for recent deaths.
For curative title investors, affidavits of heirship are essential tools for clearing title on properties where owners died intestate. They're often the first step before pursuing a quiet title action if needed.
Real-World Example
A property owner died in 2010 without a will, leaving three adult children. The children want to sell the property but title is still in the deceased's name. They execute an affidavit of heirship with two family friends as witnesses, record it, and can then convey the property as the legal heirs.
Texas-Specific Information
Texas Estates Code Section 203.001 authorizes affidavits of heirship. In Texas, the affidavit must be signed by two disinterested witnesses and include specific information about the deceased's family history. Texas title companies typically require 5 years to pass after recording before relying solely on an affidavit of heirship for title insurance.
Related Terms
Heir Property
Real estate passed down through generations without clear title documentation, typically because owners died without wills and no probate was filed. Multiple heirs often share fractional ownership interests.
Intestate
The condition of dying without a valid will. When someone dies intestate, their property passes to heirs according to state intestacy laws rather than according to their wishes expressed in a will.
Probate
The legal process of administering a deceased person's estate, including validating their will, paying debts, and distributing assets to heirs. Probate provides court supervision and creates clear records of property transfer.
Chain of Title
The chronological sequence of historical transfers of title to a property, from the original grant to the current owner. A complete chain establishes ownership through an unbroken series of conveyances.
Quiet Title Action
A lawsuit filed to establish clear ownership of real property and remove any clouds on the title. The court judgment eliminates competing claims and establishes the plaintiff as the rightful owner.
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