When a loved one dies without a will, distributing their estate can add even more hardship to a grieving family. In most cases, the decedent’s estate will go through a probate process involving lengthy delays and court oversight.
Fortunately, there are some methods heirs can use to receive the decedent’s property without going through probate. A Texas affidavit of heirship is one such method.
Below, the estate planning lawyers at Massingill will go over the details of an affidavit of heirship in Texas. If you have questions, please contact us today.
What Is an Affidavit of Heirship?
When a person dies, generally their heirs can not sell or transfer the decedent’s property until the title is updated. Usually, the probate process is the legal means of transferring property to heirs and beneficiaries.
However, an affidavit of heirship is a legal document that can transfer ownership of real property from a decedent to heirs without the property going through probate. Probate costs money, so these documents can be a less costly way for heirs to transfer real property.
An affidavit of heirship can also be helpful when four years have passed since the decedent’s death and probate is no longer an option.
Who Can Fill Out an Affidavit of Heirship?
The Texas affidavit of heirship form must be filled out and filed on behalf of a decedent’s heir and can not be completed by the heir.
Instead, two disinterested parties who know the necessary details about a decedent’s family life need to fill out the form.
The individuals who complete the affidavit can not receive any financial benefit for completing the form. Also, a licensed and registered notary public must sign the affidavit.
Steps to File an Affidavit of Heirship
If you are navigating the process of transferring property after the death of a loved one, an affidavit of heirship can be an efficient way to bypass probate in Texas. Below are the essential steps to file this document in the state.
Gather Information
In Texas, before filling out the affidavit, you need to collect detailed information about the deceased (referred to as the “decedent”), including their family relationships and property ownership. Be sure to gather any documentation related to the decedent’s assets and heirs. Having this information ready will make the process smoother for those completing the affidavit.
Identified Disinterested Parties
Under Texas law, the affidavit must be filled out by two disinterested parties—individuals who have no financial interest in the estate and are not heirs. These individuals must know the decedent’s family structure and history well enough to verify the heir’s relationship to the decedent.
Complete the Texas Affidavit of Heirship Form
Once the disinterested parties are identified, they will complete the affidavit form, providing specific details about the decedent’s life, family, and any Texas real estate they owned. It’s critical that all information is accurate, as any errors could result in complications or delays in the property transfer.
Notarize the Document
In Texas, the affidavit of heirship must be signed before a licensed notary public. Proper notarization is essential for the document to hold legal weight and be recognized by courts or title companies.
File the Affidavit with the County Clerk
The notarized affidavit must then be filed with the county clerk in the Texas county where the decedent’s real property is located. Since each county may have its own filing procedures and fees, contact the county clerk’s office to verify the steps for submission and the filing cost, which typically ranges from $50 to $75 in Texas.
Follow Up with the County Clerk
After the affidavit has been filed, follow up with the county clerk’s office to ensure it has been properly recorded. This step is crucial to ensure that the property is legally transferred to the heirs without the need for probate under Texas law.
By following these steps, you can efficiently transfer property and avoid the complexities of the probate process in Texas. If you need guidance at any point, our team of experienced Texas estate planning attorneys is here to help. Contact us today for a consultation.
How Much Does It Cost to File an Affidavit of Heirship in Texas?
Each county has a different filing fee, but the cost of filing an affidavit of heirship in Texas runs from $50 to $75. You will likely also need to pay a notary public to witness the document signing.
Where to File an Affidavit of Heirship
An affidavit of heirship should be filed in the county where the decedent owned the property in question. Contact the county clerk in the relevant county for more information on filing fees and how to file the affidavit.
Pros and Cons of Using an Affidavit of Heirship in Texas
The most significant advantage of filing an affidavit of heirship is that using one can be much cheaper than going through a full probate process. These documents can also help heirs transfer property after probate is no longer an option.
There are several major disadvantages to using an affidavit of heirship:
- An affidavit of heirship only creates a presumption concerning property ownership and is easy to contest. Creditors can also challenge these documents.
- Some banks and title companies will not recognize an affidavit of heirship.
- There are often other methods of transferring the property of a decedent’s estate that can be more beneficial.
Your lawyer can help you assess whether using this tool is in your best interests.
Contact Massingill Attorneys & Counselors at Law Today!
Ultimately, an affidavit of heirship is a tool that is only useful under particular circumstances. At Massingill, our Austin estate planning lawyers can help you determine the best way to handle a decedent’s estate as an heir.
We offer straightforward flat-fee services and have the experience to skillfully and efficiently manage your estate law needs. Contact us today and schedule a consultation.
Affidavit of Heirship FAQs
Can an affidavit of heirship be used to transfer all types of property?
No, it generally only applies to real property (such as land or a home). Other assets like bank accounts, vehicles, or retirement accounts may require a different legal process.
How long after someone’s death can you file an affidavit of heirship?
An affidavit of heirship is commonly used if four or more years have passed since the decedent’s death, after which probate may no longer be an option.
Can an affidavit of heirship be contested?
Yes, an affidavit of heirship only creates a presumption of ownership, which creditors or other parties can challenge.
What are the alternatives to using an affidavit of heirship?
Alternatives include probate, a small estate affidavit, or other methods depending on the estate and its value. Consulting a lawyer is essential for determining the best option.
Can heirs use an affidavit of heirship if the decedent has a will?
No, this document is typically only used when the decedent died without a will, also known as intestate.
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Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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