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Affidavit of Heirship in Texas – Transferring Property After Death and Avoiding Probate Court

Affidavit of Heirship in Texas

When a decedent dies intestate (without a Will), it is common for family members to reach an informal agreement as to how to divide the estate. However, such informal agreements open the door for disputes that end up in probate litigation. An Affidavit of Heirship can help with disputes of this nature, especially when the dispute relates to real estate.

Real estate is different from other assets in that it has a record and a chain of title. Because families typically put off dealing with real estate, the chain of title may become obscure as time pass, heirs marry, pass away, or sell their share of ownership.

Johnson v. Evans, No. 12-12-00312-CV (Tex. App.—Tyler 2014) considered the situation outlined above. The case shows how the affidavit of heirship can be used to document the family history and to provide title.

Facts and Procedural History

Section 203.001 of the Texas Estates Code provides that family relationships for someone who has died can be established by court judgment or an affidavit of heirship.

The court judgment is obtained by filing an ‘heirship’ proceeding in probate court or county court if the county lacks a probate court. The court has the authority to appoint an attorney ad litem to represent the interests of the unknown or unidentified heirs. The attorney ad litem searches to find any missing or omitted heirs, after which the court hears evidence and issues an order naming the decedent’s heirs.

An affidavit of heirship may also be used to establish family relationships. If an individual dies intestate, an affidavit of heirship is used to record the facts necessary to determine who inherited property. This affidavit is acts as a record entry in real estate records, and the affidavit is presumed correct after five years.

However, other evidence may be presented. What happens if this evidence is in error or there is other evidence of the deceased heirs? We look back to the case at hand.

How To Establish Family Relationship

In the Johnson case, the descendent presented a family tree showing that his ancestors had inherited the property. The descendent also presented evidence that he had acquired the property by deed from his ancestors.

The neighbors presented an affidavit of heirship that was filed in 1956. Another neighbor signed the affidavit. This neighbor sold in the affidavit that he knew the owner’s parents and family for seventy-five years. The affidavit had been on record for over fifty years at the time of the appeals court’s opinion.

Courts noted that the family tree presented by the descendent was not supported by other evidence, such as birth or death records. The appeals court looked to the affidavit of heirship instead and concluded that the affidavit supported the trial court’s ruling.

The Takeaway

Those who inherit property from a decedent who died intestate need to probate the decedent’s estate or file an affidavit of heirship. A valid and detailed affidavit of heirship can be used to establish property title. An informal arrangement between the survivors creates a rife of problems that may lead to ambiguity and obscurity in the future.

An affidavit of heirship may also help avoid disagreements over the rightful heir to the decedent’s property. The longer that beneficiaries wait, the more difficult it becomes to prepare an affidavit of heirship. As more heirs pass away and interests in the property are passed onto their children, time can cause a large number of people to have an ownership interest in the property in question.


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