In Texas, if a person dies without a will (known as dying “intestate”), there is often a question as to what to do in order to settle the decedent’s estate. In some cases, it may be necessary to open an administration of the estate. Depending on the type of estate administration that is opened (which depends on a number of factors), this could be a somewhat lengthy and costly procedure. However, there may be some alternatives. This article will address one of those alternatives, the Affidavit of Heirship. This method, along with some other alternatives are discussed in this article by the Dallas Bar Association.
As a preliminary matter, you should check beneficiary designations on life insurance policies, retirement plans, and annuities. Unless the beneficiary of these plans is the decedent’s estate, the assets will generally pass to the beneficiaries designated. If for some reason there is no beneficiary designated for a particular plan, check with the plan administrator (for retirement plans) or carrier (for insurance policies) to determine the default beneficiary. In some cases, a surviving spouse or descendants may be the default beneficiary, which would mean there is no need to open an estate administration to deal with these assets.
If the only property owned by the decedent that needs to be transferred is real estate, it may be possible to use an affidavit of heirship. This type of procedure can only be used to transfer real estate; it does not allow administration of any property. The affidavit must be signed by two disinterested witnesses, i.e., two people who knew the decedent and are familiar with the decedent’s family history, but will not gain financially from the decedent’s estate. The witnesses in the affidavit of heirship must swear to the certain issues, such as the date and location where the decedent died, the identity of the decedent’s family members and heirs, and a statement that the witness will not gain financially from the estate.
Once the affidavit of heirship is completed, it is recorded in the deed records of the county where the decedent owned any real property. Once the affidavit is recorded, most title companies will accept the affidavit of proof of heirship. Additionally, an affidavit of heirship that has been on file for five years or more in the deed records is prima facie evidence of heirship.
There are additional alternatives to probate that will be discussed in future posts. If you have a question about affidavits of heirship or other probate procedures, contact us for a free consultation regarding your probate matter.