Texas law provides that the lawful heirs take title to the decedent’s property immediately upon the decedent’s death. How do third parties know that the heir is the rightful owner of the decedent’s property when a probate is never opened? The affidavit of heirship can provide the answer.
The affidavit of heirship is a document that provides a statement of facts of the family history, genealogy, marital status, or the identity of the heirs of a decedent.
The affidavit of heirship is not an alternative to probate per se. Rather, it is an alternative that may be used when probate is not necessary.
The affidavit itself serves as a record that the heir is likely to have some ownership claim to the decedent’s property, even though a probate was not opened.
The affidavit does not actually transfer property. It merely serves as evidence that property passed by operation of law without a probate.
The affidavit constitutes prima facie evidence of the facts stated and may be adopted by the courts if the affidavit has been filed for five years or more in the appropriate county clerk’s office.
The affidavit of heirship is used when the decedent had no unpaid debts and there was no other requirement that probate be filed.
It is often used when there is a third party who requires the affidavit before transacting business with the heir as owner of the property. For example, title companies may require an affidavit of heirship to issue title insurance for real estate and banks and financial institutions may require an affidavit to recognize the heir as the owner of the decedent’s account.
The affidavit of heirship can be used when the decedent died without a will or if there was a will and all of the beneficiaries named in a will agree not to probate the will.
The affidavit of heirship does not provide the certainty that a full probate does. It may turn out that an unknown will is discovered, the will may be probated and divest transferees of ownership of the decedent’s property.
The affidavit of heirship also does not protect against other heirs who later claim to have an interest in the decedent’s property.
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