After a person passes away, estate administration can formally transfer their property to the heirs entitled to inherit from them. However, an affidavit of heirship may provide a more efficient alternative to traditional probate when winding up a deceased loved one’s estate in Texas. But under what circumstances can you use an affidavit of heirship in Texas?
What Is an Affidavit of Heirship?
An affidavit of heirship provides a mechanism under Texas law to transfer real property owned by a deceased person to their heirs under the state’s intestate succession laws. Families may use affidavits of heirship to transfer a deceased loved one’s real estate if they did not leave a will or if nobody submitted the will to probate within four years of the decedent’s death.
In an affidavit of heirship, the person writing the affidavit (called an affiant) provides their personal information, the decedent’s personal information, and how they knew the decedent. The affidavit should detail the decedent’s marital history, their children (biological and adopted), parents, and siblings. An affidavit should also identify any other people who may have knowledge about the decedent or their heirs. The affidavit should state whether the decedent died without a will and confirm that there has been no administration of the decedent’s estate and the decedent’s outstanding debts and taxes. An affidavit will also identify the decedent’s real property. Finally, the affidavit can also explicitly identify the people whom the affiant believes are the decedent’s heirs under Texas law.
The affiant files the affidavit in the recorder of deeds office in the county where the property is located. After five years, the affidavit becomes prima facie evidence of the named heirs’ right to inherit the real estate.
What Does Formal Probate Involve?
The formal probate process in Texas involves several aspects of estate administration, including:
- The admission of the decedent’s will
- The appointment of an executor or administrator
- The delivery of notices to beneficiaries, heirs, and creditors
- The identification of and collection of the decedent’s estate assets
- The payment of the decedent’s remaining debts and taxes, applicable estate taxes, and costs of estate administration
- The distribution of remaining estate assets to the decedent’s heirs or beneficiaries
Formal probate can involve independent or dependent estate administration. With independent administration, the probate court exercises minimal oversight over the executor or administrator, who can undertake transactions on behalf of the estate without seeking express court approval. Conversely, in dependent administration, an executor or administrator must obtain court approval before undertaking most actions, such as selling property or paying a creditor’s claim.
The Timeline Comparison
Affidavits of heirship and probate have substantially different timelines. Whereas the affidavit of heirship process typically takes a few days to a few weeks to draft the document and file with the county recorder of deeds in the county where the property is located, the probate process can take several weeks to several months, or even longer for larger, more complex estates.
When Might an Affidavit of Heirship Not Be Enough?
However, certain situations can make formal probate unavoidable for a decedent’s estate, such as:
- The decedent left significant outstanding debts
- People dispute their right to inherit from the decedent
- Heirs want to sell the property quickly (it can take years to secure a clear title)
- The decedent left substantial assets other than real property
Contact Our Texas Estate Planning Firm Today
When a person passes away owning only real estate, an affidavit of heirship can provide an efficient means of transferring the property to the decedent’s heirs. Contact Carroll Law Group, PLLC today for an initial consultation with a Texas probate attorney to learn more about the differences between affidavits of heirship and probate in Texas.