Affidavit of Heirship in Texas

What an affidavit of heirship does

When someone dies without a will, their property goes to their heirs under Texas intestacy law (Estates Code chapter 201). Real estate stays in the dead person's name in the county records, so the heirs can't sell or refinance it without proof of who they are.

The affidavit of heirship gives that proof. It is authorized by Estates Code sections 203.001 and 203.002. It doesn't transfer title by itself and no judge approves it, but once it has been on record for five years it is evidence of the facts it states. In practice it creates the chain of title a title company needs.

When you can use one

• No will, or a will that wasn't probated within four years of the death.
• The estate is mostly real estate in the dead person's name. The affidavit is for real property, not cars or bank accounts.
• No open probate case and no dispute among the family about who the heirs are.
• Debts are paid. The witnesses swear that the person owed no debts, so unpaid debts point to probate instead.

If a title company won't accept the affidavit, or the family disagrees, a court can declare the heirs in an application to determine heirship. That needs a probate court hearing, two disinterested witnesses and usually a lawyer.

What it says

• The name, date and place of death of the person who died, and that they left no will.
• Every marriage: each spouse's name and whether the marriage ended by death or divorce.
• Every child, including children who died, with the children of any child who died.
• If there are no children, the parents, brothers and sisters, and the children of any who died.
• That the person owed no debts.
• The legal description of each piece of real estate, copied from the deed, not the tax roll.
• The witness's relationship to the family and that they won't gain from the estate.

TexasLawHelp publishes a sample affidavit of heirship from the Earl Carl Institute. It is a model to draft from, not a fill-in form.

Who signs it

Each affidavit is signed and sworn before a notary by someone who knew the person who died and their family history, such as a family friend or a neighbor. TexasLawHelp says to find two people, each signing their own affidavit. The witnesses shouldn't be heirs or have any interest in the estate. If no unrelated person can be found, a family member who won't benefit financially may sign.

How to file it, step by step

1. Get a copy of the deed from the county clerk for the exact legal description.
2. Draft the affidavit using the sample, leaving out paragraphs that don't apply.
3. Have two witnesses each sign one before a notary.
4. Record both in the real property records of every county where the person owned land. Call the county clerk for the fee and ask whether both affidavits can be recorded as one document.
5. Give the title company a certified copy of the death certificate along with the recorded affidavits when you sell or refinance.

Other ways to transfer the property

• Transfer on death deed. If the person recorded one before they died, the beneficiary records an affidavit of death and owns the property with no affidavit of heirship. See transfer on death deeds by state.
• Small estate affidavit. For estates up to $75,000 without counting the homestead and exempt property, approved by a judge. It transfers only the homestead, and only to a surviving spouse or minor child. See the Texas small estate affidavit.
• Application to determine heirship. A court declares the heirs. Use it when there is a dispute or a title company won't accept an affidavit.
• Probate. Needed when there are debts to pay, assets beyond real estate, or a will to probate. See what probate is.

A car is separate: Texas heirs use the Affidavit of Heirship for a Motor Vehicle (form VTR-262) at the county tax office. See how to transfer a car title after death in Texas.

Other states have their own ways to show heirship without probate, often limited to small estates or vehicles. Check your state in the small estate affidavit by state guide, and the car title after death guide for a vehicle.

Related guides for heirs

• Do you pay tax on an inheritance? Federal and state rules
• Inherited property capital gains calculator
• Selling an inherited house: net proceeds calculator
• Transfer on death deeds by state
• Real estate transfer tax by state, and on an inherited house
• Transfer a car title after death, by state
• Inheritance tax by state: the 5 states that tax heirs
• Inheritance tax calculators by state
• Estate tax vs inheritance tax
• Small estate affidavit by state