What is a Texas Affidavit of Heirship?
The Texas Affidavit of Heirship is a legal document that steps in when someone passes away without a Will and without testamentary (probate) administration. Meaning, if an individual dies without leaving behind a Will transferring his or her property, and the individual has not probated a Will, then the Texas Affidavit of Heirship will assist you in establishing ownership to real property. A long and archaic name for a really simple document.
But, these are the facts. If you want someone to receive ownership to real property from a decedent’s estate, then you need to solidify that right. The Right of Inheritance law provides a statutory means for one to receive ownership to a decedent’s estate . The official name is the Right of Inheritance as governed by the laws of descent and distribution set forth in Texas Estates Code Chapter 201; however, this is a mouthful that does not go well with Texas "big" lips.
Or, if you want someone to receive title to real property owned by someone who passed away, then you need to fill out the Texas Affidavit of Heirship form. But, anyone who has ever filled out an Affidavit of Heirship knows that these are not just forms Word processing programs should throw out there. Not at all. Not only does an Affidavit of Heirship require a lot of information, but the Affidavit of Heirship must also follow some pretty strict guidelines to be considered valid.
Per Texas Probate Code § 51, the Affidavit of Heirship must be:
Affidavit of Heirship Legal Requirements in Texas
In order for an Affidavit of Heirship to be valid in Texas, it must meet certain legal requirements. First, the Affidavit must be signed by at least two witnesses, each of whom completely filled out the attached Statement of Facts. Second, all of the very specific personal information set forth in the required Statement of Facts must be made part of the Affidavit, including the following: Once the Affidavit has been properly executed and contains the required information, it must then be acknowledged by a notary public in front of the witnesses. The notarization serves as the legal evidence of the fact that the witnesses who signed the Affidavit have sworn to the information contained therein. This is in contrast to a Standard Affidavit of Heirship, which does not require witnesses or notarization by a licensed notary public.
How to Complete the Texas Affidavit of Heirship Form PDF
Filling out the Texas Affidavit of Heirship Form PDF is a straightforward process, yet it requires careful attention to detail. This section provides a step-by-step guide to completing the form, along with tips on how to avoid common pitfalls.
The form is divided into several sections, and each should be completed in the order they are presented.
- Introduction of Affiant: Start with the affiant’s name and other personal details such as age, residence, and information relevant to prove the affiant’s credibility.
- Family Information: Provide a detailed family history, including the decedent’s full name, date of birth, and the names of an immediate family, if applicable. If the decedent had no children, this section should note that fact.
- The Decedent’s Estate: List the property owned by the decedent at the time of death and provide the details necessary for identification. Include the nature and location of the property, such as "a 1992 Honda Accord, VIN 123456ABC, parked at 12345 Main St., Anytown, TX 78700." Indicate whether the decedent had a will and if so, state its location.
- Ownership of the Property: Affiant should provide information about any claims of interest in the property by individuals or entities other than the decedent. It should also be stated that the affiant has full authority to determine the heirs.
- Heirship: This is the crucial part of the affidavit where the affiant swears an oath that the people named as heirs are indeed the correct heirs as per the Texas laws of descent and distribution. If a mistake is found, it could result in the affidavit not being admitted into probate.
- Signature and Notarization: Finally, the affiant must sign the affidavit before a notary public. After notarization, the affidavit will be accepted for recording in the county clerk’s office where the decedent was a resident.
Common Mistakes:
- Incomplete information: Be sure to include all necessary details. Incomplete information may result in legal challenges in a probate court.
- Failure to notarize: The affidavit must be notarized in order to be valid. Make sure that the signature is witnessed and authenticated by a notary.
- Incorrect information: Before filing the affidavit, it’s important to have all the facts checked carefully. Any inaccuracies could be costly when it comes to rectifying the error.
By following this step-by-step guide, completing the Texas Affidavit of Heirship Form PDF will become an easier task. It’s also good practice to carefully review the completed form for any mistakes before filing it.
Where to Obtain a Texas Affidavit of Heirship Form PDF
Online Resources
One of the easiest ways to obtain a Texas Affidavit of Heirship Form PDF is through various online resources. Many legal websites and organizations provide free downloadable versions of various legal documents, including the Affidavit of Heirship. Websites such as LegalZoom, TexasLawHelp.org, and Rocket Lawyer offer templates that you can fill out according to your state’s laws. Make sure that the form you download is specific to Texas, as the requirements may vary from state to state.
Legal Aid Offices
Legal problems can be daunting if you do not have the resources to hire a lawyer. However, legal aid offices can guide you to free or low-cost legal services in your area. They often provide not just forms but also supplemental information on how to fill them out and file them with the court. Visiting a legal aid office can save you time and may even increase your chances of having your Affidavit of Heirship approved.
Public Libraries
Libraries can be an untapped resource for legal forms and information. Not only can you find a Texas Affidavit of Heirship Form PDF on their computers, but you can also get access to legal books that may provide additional information specific to your case. While you cannot get personalized advice, you can access a wealth of knowledge that can help you determine the best steps to take.
Office Supply Stores
If you prefer to fill out forms the old-fashioned way, you can find paper forms at office supply stores. These forms are often free, so check the front desk or ask a staff member about their availability.
Filing and Recording Affidavit of Heirship
Although a Texas Affidavit of Heirship Form may be sufficient as a matter of law, it must still be file-marked in the courthouse to be effective as a matter of practice. Thus, once the document is properly completed and notarized, it must be filed in the appropriate clerk’s office (the county in which the subject decedent died, the county in which the real property is located, or both). Generally speaking, the filing fee for a Texas Affidavit of Heirship Form ranges from $20 to $40 (payable via cash, check, credit card, or money order) . Some counties charge an additional filing fee if the Affidavit is filed concurrently with other filings (i.e. an Application to Determine Heirship). The filing fee is also typically higher if the Affidavit of Heirship for Real Property is seven pages or more. It is important to note that before a real property Affidavit is accepted for filing, the Clerk will inquire as to whether any application to probate a will or an application for letters of administration has been filed regarding the decedent. If so, the Affidavit of Heirship is generally not filed until the Administration is determined final.
Affidavit of Heirship Uses and Limitations
The Texas Affidavit of Heirship is often used in real estate and mineral estate transfers after the death of a family member. This is because, under Texas law, intestate succession only transfers "title" to decedents’ property to the decedents’ heirs at law, if those heirs are immediate family members. This is not a full title transfer or transfer of ownership and does not affect every instrument or contract of sale (i.e. the property still needs to be conveyed by deed). However, as to those instruments or contracts where title does transfer by operation of law, the Affidavit can be sufficient.
On a practical level, in many situations, the Affidavit is used to transfer ownership of homesteads or ordinary property of little value. Given this value, it is often used in lieu of formal probate proceedings with the hope that the real world affects of the transfer will comply with the overall legal intent of he use of an Affidavit of Heirship. Usually, this intent is that property passes to family members without any further procedural requirements. Of course, there are many exceptions and nuances to this rule.
Legal Help
It is always a good idea to speak with an attorney if you are dealing with an estate issue to ensure that you are meeting the current requirements under Texas law. An attorney can provide more information on the forms you may need and they can offer additional legal services related to estate planning. An attorney can help you create a will, trust or other estate plan indication .
Queries About Estate Issues and Mistakes
As an example of how a lawyer may help you with your estate issues, below are answers to certain queries that people often ask:
What if there is no will? Can my sibling inherit my parent’s real estate property?
As stated above, as long as a person dies with no debts, the property will be "passed" down as per the Texas Affidavit of Heirship Form PDF.
What if my family member has died without a Will?
If a family member or a friend dies without a Will, it is crucial that you contact a local estate planning attorney regarding the next possible steps.