Chapter 203 of the Estates Code details the effect of an affidavit of heirship in a court proceeding and provides a permissible form of the affidavit. However, chapter 203 is devoid of any practical explanation of when and how these affidavits are commonly used.
While there are multiple scenarios when an affidavit of heirship may prove useful, this post will discuss the most prevalent use in our firm's practice. Our law firm frequently gets requests from people who say they need to sell or get ownership of "heir property. " While there is really no such legal term as "heir property," these prospective clients are usually referring to a property that was owned by some relative (usually a grandparent or great grandparent) that passed away. Additionally, this relative died without a will and nobody ever probated the estate of this relative. The prospective client usually proceeds to tell us that they have been "taking care of the property," paying taxes, and "all the other heirs want nothing to do with the property."
Unfortunately, we have to tell the prospective client that they do not automatically own the property or have the ability to pass marketable title just because they have been "taking care of the property" and the "other heirs want nothing to do with it."
The reality is that the property will pass according to the laws of intestacy in Texas (how the state says who will get your property if you die without a will). This means that if grandmother or grandfather had 8 children, and each of those children had 4 children, and those 4 children had 2 children, and assuming that some of the original 8 children passed and some of the their children passed--the property could be owned by a lot of people under the laws of intestacy in Texas.
In the above example, we may need to do affidavits of heirship for each person that passed away. That means we would have to find two disinterested witnesses (people who did not stand to inherit), knew decedent for a long time, and can swear to decedent's family history. We would then record these affidavits in the real property records. These affidavits would then serve to link title from the original owners of the real property to their heirs. After the affidavits were recorded, the heirs could then transfer title to someone else or to the heirs that wanted the property. Additionally, the hope or idea would be that a title company would actually insure title to the property after finding the affidavits in the real property records.
The abovementioned example where grandfather and grandmother had 8 children is obviously an extreme example meant to illustrate just how difficult clearing title can really be when there are large families where multiple relatives have passed and no probates were ever done. While our firm has certainly done a handful of these complicated family histories, our firm frequently resolves much easier family histories. Examples of easier facts include where a surviving spouse needs to clear title to his or her real property or where all the children of a deceased parent are still living.
The affidavit of heirship remains a very cost effective means by which to clear title in Texas. There are certainly limitations to its use and the process should be supervised by a licensed attorney to help ensure the heirs have the best chances of obtaining insurable title.
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