AFFIDAVITS OF HEIRSHIP

Determinations of Heirship

When a person dies in Texas without making a will, the probate court overseeing distribution of the person’s assets may need to determine who will inherit from the deceased person. In this case, the court may hold a determination of heirship proceeding.

Several people can petition the court to determine heirship. These people include, among others, the executor or personal representative of the deceased person’s estate, a person claiming to be a creditor or heir, or the deceased person’s former guardian.

Proceedings to determine heirship are needed under a few circumstances. For example, if someone dies in another state but owns a house in Texas, and the estate was not administered in Texas, a proceeding is appropriate. Alternatively, a proceeding may be needed if a will was probated or an estate administered in Texas but some property was omitted from the will or administration, or the property has not been distributed yet because the heirs have not been identified.

Applying to the court for an heirship determination requires an often lengthy application listing all known heirs of the deceased person. It must include contact information for the heirs and their relationship to the decedent. Further, the application must list each heir’s interest in the estate. Depending on the size of the deceased person’s family, this can become quite complicated. For any heirs whose identity or location are unknown, the court will appoint an attorney “ad litem” to represent their interests. The known heirs may also choose to retain attorneys to represent them in the heirship proceeding. Finally, the application must be supported by an affidavit declaring the truth of the facts listed in the application.

After notice is given of the heirship application and proceeding, the court will hold a hearing to determine heirship and issue a judgment detailing who the heirs are and their interests in the estate.

Affidavits of Heirship

In addition to the facts listed in an application for an heirship determination, Texas courts may also take notice of an affidavit or a court judgment containing similar information for the purpose of determining heirs to an estate. The affidavit or judgment must list information about the decedent’s death; his spouses, children, and sometimes parents; his real property assets and debts at death; and more. Such affidavit or judgment must have been recorded for five years either as part of the deed records in the same Texas county where the property at issue is located or in the deed records in the county where the deceased person lived at death.

Affidavits of heirship are useful to demonstrate that title to real property has been transferred from a deceased person. In cases where the person’s only asset is real property, the affidavit is sometimes used instead of probate. However, banks and title companies may not recognize the affidavit as a valid transfer of title, and the affidavit will not affect the rights of omitted heirs or creditors.

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