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What’s an Affidavit of Heirship and why do I need one?

On Behalf of | Dec 21, 2017 | Probate & Estate Administration |

The fact is that the majority of people here in Texas and across the country die without either an adequate will or a will at all. This means that a surviving family member will need to step up and take control of settling the decedent’s estate. If you fulfill this role, you will be required to take several steps in order to accomplish that goal.

As part of that process, it will be necessary to identify all of the potential heirs to the assets of the estate. In order to do so, you will need an Affidavit of Heirship.

What is an Affidavit of Heirship?

The goal of probate is to transfer title to the decedent’s assets to his or her heirs. When a person has a will, he or she outlines who receives what property from the estate after death. If no will exists or the court rules an existing will invalid, Texas laws of intestacy take over. In order to complete the task, an Affidavit of Heirship is required in order for the court to determine who receives the assets from the estate. However, that does not necessarily mean that you need probate.

What does an Affidavit of Heirship do?

The affidavit outlines to whom legal title of each asset passes. In some instances, this affidavit replaces the probate process. However, if anyone disputes the distribution, you must proceed with the probate. If everyone agrees to the distribution plan, it may be possible to use this affidavit to stay out of court.

The size of an estate may impact the necessity for probate, especially if no valid will exists. In order to know whether you can use this type of affidavit to avoid probate, you may want to seek out the advice of an attorney.

What does an Affidavit of Heirship contain?

The affidavit must contain all relevant information regarding each heir. This includes blood relatives, spouses and registered domestic partners. This may also include any former spouses and deceased relatives or spouses. You must also include information regarding your deceased family member’s assets, debts and taxes, along with any other steps you may already have taken regarding administration of the estate. The nature of your relationship to the decedent and your address must be included as well. 

What does executing an Affidavit of Heirship entail?

The affidavit’s execution must conform to current state law. This often requires that witnesses and a notary public attend its signing. You may still need the approval of the court to proceed in accordance with the affidavit. To better understand what information needs to be included in the affidavit and know what steps your particular situation requires, you may want to seek the advice and guidance of an experienced probate attorney.