Affidavit of Heirship
An “Affidavit of Heirship” is a document in which third parties with no financial interest in a deceased person’s estate swear that the estate left no debts and that the proclaimed heirs of the estate truly are the heirs. This affidavit is useful because it can transfer property much like a deed or title can. Like most probate-related procedures, though, this affidavit is useful only when the estate satisfies certain legal requirements.
Typically, an Affidavit of Heirship is used when your loved one left no Will. If your loved one left no Will, left no debts, the estate needs no administration whatsoever, and all of the heirs are readily and certainly identifiable, an Affidavit of Heirship might be a good option. This affidavit can be recorded on the property records to transfer property kind of like how a deed can. (Speaking of deeds, it is almost always recommended to prepare another deed after recording the affidavit to ensure that the chain of title is clear.)
In limited circumstances, even if a Will does exist, an Affidavit of Heirship might still be used. In these cases, the Will, the Affidavit of Heirship, and a new deed will often be attached and filed together on the property records. As above, in many cases, this procedure is adequate for the sole and limited purpose of transferring real property. However, it may not be advisable to proceed with an Affidavit of Heirship when there is a Will. Doing so might risk neglecting the statute of limitations, if it is discovered at a future time that the Will does actually need to be probated. Further, an Affidavit of Heirship does not function to appoint an Executor, without whom it will be legally impossible to settle the other ongoing affairs of an estate.
Regardless of whether there is a Will or not, an Affidavit of Heirship does have several independent weaknesses and disadvantages. First of all, an Affidavit of Heirship is a postmortem property transfer document that is unique to Texas. This means that if your loved one left property outside of the state of Texas, then an Affidavit of Heirship won’t work, and probate will be necessary anyway. Furthermore, even in Texas where an Affidavit of Heirship is commonly recognized as valid, many title companies are wary of insuring a property when only an Affidavit of Heirship is available on the property records as evidence of property conveyance and ownership. Many still do so, but it is just not as clean as an Executor’s/Administrator’s deed, and hence certain title companies might not feel “warm and fuzzy” about proceeding, especially if the Affidavit of Heirship has been recorded on the property records for less than five years.
Ultimately, an Affidavit of Heirship can be useful in some limited circumstances. It is important to evaluate your situation and determine whether an Affidavit of Heirship or another kind of probate proceedings would be best for your family.