When a person passes without a Will, they often leave their family and friends in a state of confusion as to how to dispose of their personal property and real estate. Under Texas law, one way to dispose of your loved one’s property is through an affidavit of heirship.
Affidavit of Heirship
An Affidavit of Heirship is generally used when someone dies without a Will and has left real estate. The affidavit contains the family history of the decedent and sets out who the decedent’s rightful heirs are by law.
Heirs by Law: All heirs of the decedent must sign the affidavit for it to be valid. An affidavit of heirship can be challenged if it is executed without the consent of all the heirs. For example, if someone passes away with fourteen heirs, all fourteen heirs would have to sign the affidavit for it to be a valid transfer of property.
Property Owned With Another Party: An Affidavit of Heirship must be done even in the event that your deceased loved one has purchased real estate with someone else. The property does not automatically pass to the living owner. An affidavit of heirship must be done to transfer the deceased owner’s interest in the real estate to their living heirs.
Property Owned by Multiple Decedents: If both owners of a piece of property have passed away without a Will, then an affidavit of heirship must be prepared for each deceased owner to transfer ownership of the property.
Once an affidavit of heirship has been validly executed by all heirs of the decedent, it must be filed in the county where the property is located to complete the transfer.
A common misconception is that if a loved one takes over a decedent’s property and begins to pay the taxes and live on the property that they gain all the rights of the owner. This is true in some case of adverse possession, but overall an affidavit of heirship will have to be filed with the county before you are able to exercise rights such as getting a loan on the property, receiving information concerning the property or selling the property.
If your loved one has passed away without a Will, I always advise to seek legal counsel before taking any steps to manage their estate.