An Affidavit of Heirship is a legal document that summarizes the deceased person’s family history and the identity of their heirs. Although it is not a formal adjudication like probate is, an affidavit that is recorded in the public records of any county in which the decedent owned property creates a rebuttable presumption that the property has passed to the heirs.
When someone dies owning property evidenced by title, heirs cannot sell or transfer property until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.
But in cases where the decedent’s only asset is real estate, and there are no outstanding debts besides those secured by real estate, full probate may not be necessary. In some cases, an Affidavit of Heirship can be a cheaper and less time-consuming alternative to probate.
The primary reason heirs opt for Affidavits of Heirship instead of full probate is that it is a cheaper alternative. Another reason is that more than four years have passed since the date of death, and probate may not be an available option.
While it is a cheaper alternative to a judicial determination of heirship, it does have some disadvantages:
Heirs should not sign Affidavits of Heirship. Rather, the individuals who sign the affidavits (the affiant) should be persons who are familiar with the decedent’s family history and stands nothing to gain from the estate.
An affidavit of heirship is not appropriate for every situation. An attorney can help you determine whether an affidavit of heirship is appropriate for your unique circumstances.
This article was originally published on March 22, 2021 and updated on July 30, 2023.
Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.