DAVID J. WILLIS ATTORNEY
Copyright © 2013. All rights reserved worldwide.
AFFIDAVITS OF HEIRSHIP IN TEXAS INTESTACY CASES
by David J. Willis, J.D., LL.M.
If a person dies without a will, and the deed does not expressly include joint tenancy with survivorship language, then issues may arise as to which persons have title and in what percentages. Such property is often referred to as "heirship property." It is essentially unsellable as it is, and a title company will not issue title insurance until heirship issues are addressed and resolved. This is usually accomplished 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.
Note that this is not an article on probate law, although we occasionally refer to sections of the Probate Code. If an investor is faced with probate issues, then an attorney who is a board-certified specialist in that area should be consulted.
Title Company Requirement
This is the typical title company requirement where heirship property is involved: We are to be furnished with an affidavit executed by an immediate member of the family and corroborated by at least two disinterested parties containing the marital history of the deceased and his spouse and a complete list of heirs, together with an original death certificate attached.
The title company is asking here for an affidavit of heirship. The purpose of the affidavit in an intestacy case (no will) is to describe family history and name the likely heirs pursuant to the appropriate provision of the Probate Code. The affidavit must be signed under oath by a person familiar with these facts (usually but not always a family member) and attested to by disinterested witnesses (using three witnesses is prudent) who have no personal or financial stake in the outcome. It is then filed in the real property records of the county where the property is located.
When a person dies intestate, the rules of intestate succession take over. Essentially, the State of Texas has made a will for intestate decedents.
If the intestate decedent is unmarried, then Probate Code section 38 applies, providing that 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 section 45 applies, which can be complicated to understand and apply:
§ 45. Community Estate
(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under section 43 of this code. In every case, the community estate passes charged with the debts against it.
(2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
A well-drafted affidavit of heirship will refer to specific sections of the Probate Code and reach a conclusion as to the identity of the heirs.
Two-Step Process: Affidavit then Deed
Curing title (resolving heirship issues) outside of probate court is usually a two-step process. First, 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 section 52A offers a suggested form for this affidavit, although the form is only a minimal guideline. Crafting a thorough and effective affidavit is both art and science and should be left to an attorney who will assure that its contents will be both admissible and persuasive in any future litigation. Accordingly, Internet forms should never be used for this or any other serious legal purpose.
Probate Code section 52 provides that an affidavit of heirship 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[.]"
The purpose of the affidavit of heirship is to reach conclusions as to the identity of the rightful heirs and the amount of their respective interests.
Preparation of the Deed
The second step in the process, after drafting and execution of the affidavit, is a deed that focuses title into a single heir who may then keep the property or sell it. Alternatively, all heirs may sign conveying the property to a third-party buyer.
The deed is usually a special warranty deed or deed without warranties, but not a quitclaim deed, which is to be avoided because title companies will likely not insure it. All heirs named in the affidavit (or their legal guardians) must sign. Both documents are filed in the real property records in the county in which the property is located–the affidavit first, and then the deed.
What the Attorney Needs from the Client
The attorney needs basic information from the client in order to proceed, including:
(1) an explanation of family history and circumstances (e.g., who married whom and who had children, who died with a will or without, who got divorced and re-married, and so on);
(2) a copy of the existing recorded deed to the property and, if available, a copy of a title commitment;
(3) the names and addresses of all relevant parties; and
(4) an explanation of the client’s intent. Is the goal to consolidate title into one or more heirs? Or sell the property to a third party?
In many cases heirs are spread across the country and may have lost touch. Some heirs may not sign unless they are paid to do so–and financial issues between family members can get ugly. Clients are often disappointed when they discover how difficult and expensive the process can be. Heirs may 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 reprepared and refiled, prolonging the process and increasing expense.
A prospective client calls an attorney and says "My mother died six months ago, and I need to get a deed to her ranch. How much do you charge for preparing a deed?"
The attorney needs to know a great deal more information before he or she can respond, starting with asking, "Did she die with a will?" The client admits that he hasn’t seen his mother in ten years, but he believes there was no will. He goes on to ask, "But I can still get my deed can’t I?" Further questions from the attorney reveal more information about the family. The mother was a widow. The father died two years earlier, also without a will. In addition, it turns out that the client has several siblings, one of whom was from the father’s prior marriage. Another has dropped out of sight and has not been heard from in years. There are rumors he is homeless on the streets of Los Angeles. Another sibling recently passed away, leaving two small children who are currently in foster care because their remaining parent is in prison. Also, the youngest sibling was living with Mom and taking care of her at the time of Mom’s death, and she continues to occupy the property, now claiming it as her homestead and threatening to use a shotgun on anyone who enters without her consent. She contends that Mom promised that the house would be hers in exchange for care during her final illness.
The attorney is forced to tell the client he is not going to get a deed, at least not until heirship issues are straightened out, beginning with the father and which persons were entitled to inherit from him, and then moving on to the mother and her heirs. The client is suspicious. He says, "Look, your secretary told me that the fee for a deed is $225. It sounds like you’re just trying to charge me more money. I’m the oldest, and I was always told the property would be mine one day. I want my deed now!" Unfortunately, that is just not possible given the facts of the case. The attorney is not a miracle worker, nor is a law office a court of law where differences can be adjudicated.
Information in this article is proved for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is expressly retained in writing to do so.
Copyright © 2013 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, http://www.LoneStarLandLaw.com.