Life Care Planning: Daddy died without a will; Affidavit of Heirship a good idea?

Sandra W. Reed
Special to the Reporter

Charley Jones had no will when he died. His single asset is a piece of property located on the Brazos River. Charley’s only heirs are his two sons who live out of state and have no use for the land. They want to sell the property and divide the proceeds.

They have heard they can file an Affidavit of Heirship and thus avoid the expense of probating their father’s estate. Good or bad idea?

Sandra Reed

What is an Affidavit of Heirship?

An Affidavit of Heirship is not a formal determination by a court as to who inherits property. It is merely an Affidavit which states the deceased person’s family history and identifies the heirs. This document must be signed by two disinterested witnesses - that is persons who do not stand to benefit from the decedent’s estate – who swear upon oath that the information provided is truthful. The affidavit is recorded in the deed records where the real property of the decedent is located.

Does the Affidavit of Heirship transfer title?

Unfortunately, the Affidavit of Heirship does not become evidence of transfer of title until it has been on file for five years. It is not like a judicial determination of heirship which conclusively determines the heirs of an estate immediately after the judge signs the order declaring who owns the decedent’s property.

What are the drawbacks of an Affidavit of Heirship?

Since the Affidavit of Heirship does not provide a clear transfer of title, it may not be accepted by third parties, such as potential purchasers of the property, financial institutions required to issue purchase money loans on it or title companies needed to insure the property for transfer.

In addition, the affidavit doesn’t affect the rights of an heir who might have been omitted from the affidavit. Neither does the affidavit protect against decedent’s creditors.

What is a safer way to proceed when decedent has no will?

Charley’s sons would be much better off filing for an heirship proceeding in the probate court and securing the judicial determination of heirship to establish the chain of title needed to safely sell the property and transfer title to the new owners. 

Sandra W. Reed practices Elder Law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed1247@gmail.com.