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    • Home
    • Practice Areas
      • Probate
      • Probate Attorney
      • Wills, PoA & Directives
      • Administration [No Will]
      • Muniment of Title
      • Affidavit of Heirship
      • Ancillary Administration
      • Business Entities
      • Mergers and Acquisitions
      • Drafting & Negotiation
      • Family Law
      • Collaborative Divorce
      • Divorce Attorney
      • Complex Property Division
      • Budget Divorce
      • Pre & Post Marital Agts
      • Same-Sex Marriage
      • Commercial Real Estate
      • Section 1031 Exchange
      • 1031 Exchange Svcs FAQ
      • Counsel On-Demand
    • Christiansen Legal Team
    • Achievements and Awards
    • Schedule Consult & Forms
    • Online Payments
    • Cases Under Investigation
    • News, Events & CO Blogs
    • Contact Us
    • Client 1099 Reporting
  • Home
  • Practice Areas
    • Probate
    • Probate Attorney
    • Wills, PoA & Directives
    • Administration [No Will]
    • Muniment of Title
    • Affidavit of Heirship
    • Ancillary Administration
    • Business Entities
    • Mergers and Acquisitions
    • Drafting & Negotiation
    • Family Law
    • Collaborative Divorce
    • Divorce Attorney
    • Complex Property Division
    • Budget Divorce
    • Pre & Post Marital Agts
    • Same-Sex Marriage
    • Commercial Real Estate
    • Section 1031 Exchange
    • 1031 Exchange Svcs FAQ
    • Counsel On-Demand
  • Christiansen Legal Team
  • Achievements and Awards
  • Schedule Consult & Forms
  • Online Payments
  • Cases Under Investigation
  • News, Events & CO Blogs
  • Contact Us
  • Client 1099 Reporting

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What is an affidavit of heirship?

A document that may be able to clarify the chain of title for inherited property without court.

  An Affidavit of Heirship is not a formal adjudication like probate. Rather, it is an affidavit that summarizes the deceased person’s family history and the identity of their heirs. Affidavits recorded in the public records of any counties in which the decedent owned property create a rebuttable presumption that the property has passed to the heirs.


When Can Heirs Consider an Affidavit of Heirship?


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.


Why Not 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.


What are the Disadvantages of Affidavits of Heirship?


While it is a cheaper alternative to a judicial determination of heirship, it does have some disadvantages:


  • A judicial  determination conclusively determines the heirs. Affidavits of heirship  just create a presumption that the facts contained in the affidavit are  correct. A challenger can rebut the presumption by introducing controverting testimony.
  • The affidavit does not affect the rights of an omitted heir or a creditor of the decedent.
  • Entities such  as financial institutions may not recognize an affidavit of heirship as a valid transfer of title. It’s always best to check with such entities before choosing how to proceed.
  • Also, the  affidavit does not become prima facie evidence of the facts contained in it until it has been on record for 5 years.


Who Can Sign the Affidavit?


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.

Affidavit of Heirship Brett A Christiansen Attorney Probate Galveston Texas

Want to know more? We are here to help. Speak with Brett A. Christiansen.

  

Brett graduated cum laude from Texas Wesleyan University School of Law (now known as Texas A&M University School of Law ) and is the founder of Christiansen PLLC . He has been licensed to practice law since 1999 and enjoys helping clients in Texas navigate the probate process.

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