How to Resolve Title Issues: Heirship Affidavits and Estate Planning
If you die without a Will, you are said to have died intestate. When someone dies intestate, Texas law lays out how the estate/house will be handled in the Texas Probate Code.
If a person dies without a will, and the deed to the property does not expressly include joint tenancy with survivorship language (most Texas deeds do not), then issues may arise as to which persons have title to that property and in what percentages. It is essentially unsellable as it is, and a title company will not issue title insurance until heirship issues are addressed and resolved. This must be done by either a probate proceeding in county court (resulting in appointment of a personal representative of the estate and ultimately a judgment determining heirship) or by an “affidavit of heirship” followed by a “curative deed” or “consolidation deed” (our terms) signed by the surviving heirs. (To find out more about potential title issues when inheriting a house, click here.)
What is an Affidavit of Heirship?
An Affidavit of Heirship is ‘a statement of facts concerning the family history, genealogy, marital status or the identity of heirs of a decedent.’ http://www.hweclaw.com/
If your loved one died without a will and you attempt to obtain or sell his property, you will need an affidavit of heirship. Heirship property is virtually unsellable until the owners and their ownership percentages are identified.
When someone dies without a will, or intestate, then essentially he has allowed the State of Texas to make a will for him. If the decedent is unmarried, then Texas Probate Code Sec. 38 applies, providing that the property goes in equal shares to the children if there are any. If not, then the property goes in equal shares to the parents. If the decedent was married, then community property is involved, and Sec. 45 applies. Note that this was revised in 1993 and applies only to deaths occurring after that date. http://www.lonestarlandlaw.com/Affidavits.html Texas probate law changes so make sure you stay informed.
Resolving these issues requires either a probate proceeding determining and declaring heirship or an affidavit of heirship followed by a deed.
Two Steps in Order to Avoid Probate
To find out why people choose to avoid probate, click here.
1. Prepare the Affidavit
The affidavit of heirship must be prepared and signed by someone with first-hand, personal knowledge of family history – marriages, births, and deaths. Probate Code Sec. 52A offers a suggested form for this affidavit, although this form is only a guideline. The attorney must take care that its contents will be admissible in future litigation should the affidavit ever be challenged in court. http://www.lonestarlandlaw.com/Affidavits.html
Probate Code Sec. 52 provides that it will be presumed to be true “if the affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real or personal property is located. . . .”
An affidavit of heirship details the family history and states who the heirs are under the Texas Probate Code. The purpose of the affidavit is to help determine the identity of the rightful heirs. This can be complicated when family history is complicated. At Big State Home Buyes, our in-house file processors work directly with the title companies to help find and communicate with family members in what can be very complicated issues with inherited houses. One actual seller, LaQuita, had 5 siblings to track down, including one who was in jail and we were able to help resolve issues with the title company. See her story here!
Generally, title companies require an affidavit executed by an immediate family member and sworn to by two or three disinterested parties with knowledge of the marital history of the decedent and his spouse and all of his children, as well as an original death certificate before a title policy will be issued for heirship property.
2. Preparation of the Deed
The second step in the process, after preparation of the heirship affidavit, is usually a deed that consolidates the title into a single heir who may then keep the property or sell it. The heirs may also decide to sell the property to a third party buyer. All heirs named in the affidavit must sign. Both the affidavit of heirship and the special warranty deed are filed in the real property records of the county in which the property is located. (More about deeds.)
Heirs occasionally attempt to resolve heirship and title issues on their own, without an attorney (often using junk forms from the internet), and are left with an incorrect result. Affidavits and deeds may then have to be re-prepared and re-filed, thereby prolonging the process and increasing the expense.
While some people choose to hire real estate attorneys, many others choose to work with a Company such as Big State Home Buyers. Big State Home Buyers purchases properties with the goal of providing seamless real estate. If your loved one dies without a will, Big State Home Buyers will work with a title company and a real estate attorney at no additional cost to you. Not only does this save you and your loved ones time and prevent unnecessary stress, but it can also save money. We will make sure that the title is clear before finding a qualified buyers, and can usually close and pay cash for your home in less than a month.