An Affidavit of Heirship is a sworn document that sets out the family history of a deceased person. The primary purpose of an Affidavit of Heirship is to let others, particularly probate courts, title companies and others interested in the disposition of a person’s estate, know the person or persons who will inherit property under the Texas laws of intestate succession and should include information on whether the decedent had a will. An Affidavit of Heirship may be used in conjunction with probate proceedings, or may be used as a stand-alone document in the event there is not a reason that the decedent’s estate must go through the probate process.
The Texas Estates Code sets forth a form Affidavit of Heirship that is acceptable for use in conjunction with probate proceedings. This same form when used as a stand-alone document, however, is not acceptable for title company underwriting purposes because it omits several things that are relevant to the transfer of title and which are typically covered by other probate proceedings. In addition to the family history, title companies require that any will of the deceased be attached, an affirmative statement that all debts of the decedent, including federal estate taxes and any amounts due under the Medicaid Estate Recovery Program, have been paid. In order to combat fraud, title companies also require that the Affidavit contain a perjury clause, indicating that the affiant acknowledges that lying on the document will subject them to criminal prosecution. As an extra defense against fraud, title companies also require that the information in the Affidavit of Heirship be affirmed by two disinterested witnesses that are familiar with the family history of the decedent.
Once an Affidavit of Heirship is completed, the title company examiner will review to determine who will be required to sign the documents transferring title. Typically this will include not only the heirs at law, but any devisees under the will who are not also heirs at law. Although the title company will determine who needs to sign, they will not typically determine the interest owned by each heir or devisee as the title company does not provide legal advice to the parties. The title company will ask that all those required to sign to also sign a document designating how much of the proceeds will be disbursed to each signer, so that an agreement is in place before the title transfer occurs.
If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call. Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.