(This is the final in a series of articles about Texas probate.)
There are very few types of documents that are as misunderstood as the Affidavit of Heirship.
Perhaps that is because the same name is commonly used to describe two different documents. There is the Affidavit of Heirship, also known as the Affidavit of Facts Concerning the Identity of Heirs, that is described in the Estates Code, and then there is the Affidavit of Heirship that is used by most title companies.
Bear with me as we go through the background and use of each.
Know The Differences Between Each Document
When someone dies intestate (without a will), then that person’s estate (including any land) goes to his or her heirs at law. The heirs know who they are and what they inherited but convincing everyone else of their ownership of a particular asset can be a problem.
This is a critical issue when it comes to land. Ownership, or title, of land can only be passed via a written document. If you pull the documents together that show the changes of ownership in a particular parcel of land, then you have the chain of title.
The problem with an intestacy is that there is no written document showing how the land passed. A title search would only show that the decedent was the last person in the chain and would not show that the heirs were the current owners. Thus, there is a gap in the chain of title.
An heir can fill that gap by going to court in a formal heirship proceeding. But there is a short-cut that many title companies will accept: the non-statutory Affidavit of Heirship.
What Is The Affidavit of Heirship?
This Affidavit, usually signed by a family friend and then agreed to by each heir, sets out the personal history of the decedent: name, address, date of death, marital history, and identity of anyone who could be an heir. Many title companies will accept the Affidavit of Heirship to fill in the gap in the chain of title. If an Affidavit of Heirship is accepted by the title company, then most mortgage companies and buyers will accept it, too.
As a result, there is no need for anyone to go to court for an Heirship Proceeding, which is filed in probate court and results in a judicial decree formally naming heirs.
Interestingly, there is also no direct statutory authority for an Affidavit of Heirship. It is just a short-cut that was cobbled together long ago by title companies and banks under some general statutes.
Affidavit of Facts Concerning the Identity of Heirs
There is direct statutory authority for another type of document called an “Affidavit of Facts Concerning the Identity of Heirs.” Like the Affidavit of Heirship, the Affidavit of Facts is signed by a third party who has knowledge of the decedent’s family history. Unlike the Affidavit of Heirship, the Affidavit of Facts must be filed in the deed records for at least 5 years before it is considered to be reliable and is primarily intended to be used in a court Heirship proceeding.
An Affidavit of Heirship, then, can be binding or non-binding, admissible or non-admissible, and reliable or unreliable.
Glad we got that cleared up.
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Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter contact her at email@example.com.