As a Houston probate lawyer, I often meet people who have lost loved ones. Unfortunately, many people in Texas die each year without a valid last will and testament or other dispositive estate planning document in place. In those instances, the Texas Estates Code will determine who receives the person’s property, which is usually the person’s heirs at law. Depending on the type of assets the person owned, there are several options that may be available. One option that is often used in Texas is the Affidavit of Heirship. This is an affidavit that contains a statement of facts concerning the family and marital history of the decedent. It also serves to identify the heirs of the decedent, who will ultimately inherit the probate property of the decedent. If the only property owned by the decedent was real estate, this is often a good option because it will usually allow the decedent’s heirs to move forward with a sale of the property. However, it can only be used if the decedent had no debts when he or she died, other than debts secured by real property.
The affidavit of heirship does not involve a court proceeding, and its validity is premised upon its being executed by the maker before a notary public, and having been filed in the county deed records for at least five years. However, title companies and transfer agents often allow the use of affidavits that have been on file for less than the five year requirement. The facts contained in the affidavit also need to be attested to by disinterested parties (meaning parties that will not inherit any property from the decedent).
In addition to the affidavit of heirship discussed above that is used primarily to transfer real property, there is also a document that can be used to transfer title to motor vehicles. The affidavit must be signed by all of the heirs of the decedent and it must be submitted to the Texas Department of Motor Vehicles.
As an important aside, some assets may not be automatically inherited by heirs using a Texas affidavit of heirship. Some assets are not “probate” assets but rather pass by beneficiary designation. These types of assets generally include things such as life insurance proceeds, 401k plan benefits and other retirement plan benefits, and annuities. If there is no beneficiary named on the insurance plan or other asset passing by beneficiary designation, then the plan rules will govern who inherits the proceeds. Often, the spouse will inherit if he or she is still living, otherwise the descendants (i.e., children or grandchildren) or other heirs will inherit the property.
If you need help dealing with the estate of a loved one, you should contact your probate lawyer, who can help you determine if a Texas affidavit of heirship is the right course of action for your case.