If a person dies without a will, and title to estate property does not include joint tenancy with survivorship language, then issues may arise as to which persons now have title and in what percentages. Such property is often referred to as “heirship property.”
Title vested in the name is a deceased person is unsellable as it is. The deceased person obviously cannot execute a deed to a new owner, so some form of legal action must be taken to reestablish the chain of title. Available action can be broadly divided into those which require the involvement of a county probate court and those that do not.
Actions involving probate court are not discussed in this chapter. These would include probate of wills, appointment of a personal representative of the estate, administration of intestate estates (no will), and the small estate affidavit process described in Estates Code Chapter 205. This chapter will only discuss affidavits of heirship as a means of resolving issues so that the underlying real property may be sold to a third party with a policy of owner’s title insurance. Other processes and procedures relating to estates and heirship property fall more properly into the category of probate law rather than real estate law.
Affidavits of Heirship Regarding the Homestead
A title company will not insure the title to real property until heirship issues are first addressed and resolved. An affidavit of heirship is a non-court device often used to cure schedule C requirements in a title commitment. The following is a typical title company requirement: 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.
Affidavits of heirship fall generally into two categories: the first category is where real property in the estate consists solely of the homestead. Section 2005.006 of the Estates Code addresses this specific situation:
SEC. 205.006. TITLE TO HOMESTEAD TRANSFERRED UNDER AFFIDAVIT
(a) If a decedent’s homestead is the only real property in the decedent’s estate, title to the homestead may be transferred under an affidavit that meets the requirements of this chapter. The affidavit used to transfer title to the homestead must be recorded in the deed records of a county in which the homestead is located.
(b) A bona fide purchaser for value may rely on an affidavit recorded under this section. A bona fide purchaser for value without actual or constructive notice of an heir who is not disclosed in the recorded affidavit acquires title to a homestead free of the interests of the undisclosed heir, but remains subject to any claim a creditor of the decedent has by law. A purchaser has constructive notice of an heir who is not disclosed in the recorded affidavit if an affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies that heir as the decedent’s heir.
(c) An heir who is not disclosed in an affidavit recorded under this section may recover from an heir who receives consideration from a purchaser in a transfer for value of title to a homestead passing under the affidavit.
Filing an heirship affidavit pursuant to Section 205.006 is a straightforward case so long as there is no ambiguity as to the identity of the heirs and no dispute among them. The affidavit describes the property (its legal description) and declares as a matter of record who the heirs are. If properly drafted and executed in compliance with Chapter 205 and title company requirements, then heirship issues may then be considered resolved. No involvement of the probate court is required. Title to the homestead is deemed to be transferred to the heirs named in the affidavit, and a proposed transaction can move forward to closing into the name of a third-party buyer.
The process is the same whether or not the decedent died without a will. Reason? A last will and testament is not self-executing as to changing title to real property. It is merely a statement of the decedent’s intent. The will must be acted upon in some manner, either by means of a formal probate proceeding (filed within four years of death) or by means of an affidavit of heirship recorded pursuant to Section 205.006. One and done, so to speak.
Affidavits of Heirship Regarding Non-Homestead Real Property
The second general category of heirship affidavit encompasses attempts to cure and consolidate title to real property beyond the homestead—rental property, for example, or perhaps the family ranch. These cases are often more complicated and therefore any affidavit drafted to resolve these issues is likely to be more complicated as well. Estates Code Chapter 203 (Nonjudicial Evidence of Heirship) applies.
Unlike the simple case of homestead as the sole real property in the estate, there is no statutory assurance that an affidavit of heirship will actually do the job when non-homestead properties are involved. The deciding arbiter in such matters is nearly always the title company, which may choose to accept an affidavit of heirship as a sufficient curative measure (and subsequently issue an owner’s policy of title insurance to a new buyer) or require instead that a judgment determining heirship be obtained from a probate court.
So cases involving non-homestead real property are an exercise in figuring out what must be included in the affidavit in order to induce a title company to waive its objections and insure title. Sometimes this can be accomplished, sometimes not. In the latter instance, the heirs must then turn to a probate court and seek a judicial determination of heirship and title—clearly a more costly process than drafting and recording an affidavit.
When is an affidavit of heirship required?
The purpose of the affidavit is to describe family history and circumstances and identify the likely heirs. Estates Code Section 203.001 states in part:
SECTION 203.001. RECORDED STATEMENT OF FACTS AS PRIMA FACIE EVIDENCE OF HEIRSHIP
(1) A court shall receive in a proceeding to declare heirship or a suit involving title to property a statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent as prima facie evidence of the facts contained in the statement if: (1) the statement is contained in: (A) an affidavit or other instrument legally executed and acknowledged or sworn to before, and certified by, an officer authorized to take acknowledgements or oaths, as applicable; or (B) a judgment of a court of record; and
(2) the affidavit or instrument containing the statement has been of record for five years or more in the deed records of a county in this state in which the property is located at the time the suit involving title to the property is commenced, or in the deed records of a county in this state in which the decedent was domiciled or had a fixed place of residence at the time of the decedent’s death.
The affidavit must be signed under oath by a person familiar with facts relating to family circumstances and history (usually but not always a family member). Although the statute does not expressly require that the affidavit be attested to by disinterested witnesses (i.e., persons who have no personal or financial stake in the outcome), title companies routinely require two notarized signatures of disinterested persons—three is prudent.
After execution, the affidavit should be filed in the real property records of the county where the property is located. If the property overlaps county boundaries, then a separate affidavit should be filed in each county where the property makes an appearance.
Title Company Policy
Estates Code Section 203.002 provides a recommended format for the affidavit, although strict adherence to the form is not required. As a practical matter, it is more title company underwriting policy rather than the requirements of this statute that drive the content of such affidavits.
Individual title underwriters vary in their requirements. The following are among the rules that have been promulgated by American Title Company:
(1) the decedent must have died at least six months prior to the execution of the affidavit;
(2) a death certificate on the decedent must be furnished to the title company;
(3) the affidavit must be signed by at least two disinterested parties having personal knowledge of the family history of the decedent and having personally known the decedent for at least ten years (a disinterested party is one that will receive no benefit of any kind from signing the affidavit—so this would exclude a spouse or child of a person who expects to receive an heirship interest).
(4) in addition to bearing the signature of the affiant, the affidavit must also be executed by all adult heirs who are taking title pursuant to the intestacy statutes;
(5) if the disinterested parties are related to the decedent, then this must be disclosed;
(6) the title company’s examination of title cannot reveal any discrepancy with the facts asserted in the affidavit;
(7) if there is a will that has not been probated, it must be attached to the affidavit and must support the facts asserted in the affidavit; and
(8) the following paragraph must be included:
“I am aware of the penalties of perjury under Federal Law, which includes the execution of a false affidavit, pursuant to 18 U.S.C.S., Section 1621 wherein it is provided that anyone found guilty shall not be fined more than $2,000 or imprisoned not more than 5 years or both. I am also aware that perjury in the execution of a false affidavit is a criminal act pursuant to Section 37.02 of the Texas Penal Code. Finally I am also aware that under Section 32.46 of the Texas Penal Code, a person commits an offense, if with intent to defraud or harm a person, he, by deception, causes another to sign or execute any document affecting property or service of the pecuniary interest of any person, and that an offense under such section is a felony of the third degree which is punishable by a fine of $5,000 and confinement in the Texas Department of Corrections for a term of not more than 10 years or less than 2 years.”
Expect high-dollar transactions to receive extra scrutiny—and perhaps additional requirements.
Since other title companies may have additional or different requirements than those mentioned in this chapter, and these may change over time, it is nearly impossible to draft an affidavit of heirship that is guaranteed to be accepted by all title companies at all times in the future. The attorney’s job is to get as close as possible. If the client wants a precise and reliable result, then the alternative is to seek a declaratory judgment from a court.
Applicable Case Law
How do affidavits of heirship actually play out in court? The following is a good example: under Estates Code Section 203.001, “the affidavit of heirship, having been on file in the deed records for more than five years, serves as prima facie evidence of the facts therein stated in a proceeding to declare heirship or in a suit involving title to real or personal property.” Accordingly, the filed affidavit prevails unless other parties “produce summary judgment evidence sufficient to raise a fact issue on the matter.” Jeter v. McGraw, 79 S.W.3d 211, 215 (Tex.App.—Beaumont 2002, pet. denied).
When a person dies intestate, the rules of intestate succession take over. Essentially, the State of Texas has, by means of Estates Code Chapter 201, made a will for intestate decedents.
If the intestate decedent is unmarried, then Section 201.001 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 201.003 applies:
SECTION 201.003. COMMUNITY ESTATE OF AN INTESTATE
(a) If a person who dies intestate leaves a surviving spouse, the community estate of the deceased spouse passes as provided by this section.
(b) The community 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 (2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(c) If the deceased spouse is survived by a child or other descendant who is not also a child or other descendant of the surviving spouse, the deceased spouse’s undivided one-half interest in the community estate passes to the deceased spouse’s children or other descendants. The descendants inherit only the portion of that estate to which they would be entitled under Section 201.101. In every case, the community estate passes charged with the debts against the community estate.
Core Requirements of a Satisfactory Affidavit of Heirship
A well-drafted affidavit of heirship will:
(1) thoroughly review relevant family facts, including whether or not the deceased died with a will, the names and addresses of all heirs and other parties in interest, including their relationship to the deceased and (if relevant) their marital histories and whether or not they had children, the goal being to clearly map out the deceased’s line of succession with reference to applicable sections of the Estates Code;
(2) identify the affected real property, since this is how county clerks are able to record the instrument within the intended chain of title (it is astonishing how many affidavits of heirship fail to mention any property at all, making them of dubious value); and
(3) reach a reasoned conclusion as to the identity of the heirs and the amount of their respective interests. The affidavit should end with a positive assertion, for example: “Pursuant to Estates Code Section 201.001, I therefore assert that I am the sole rightful of John Jones, deceased. Accordingly, fee simple title to the subject property vested solely in me and no other persons at the time of the decedent’s death.”
In filing an affidavit of heirship, an affiant is making a case—the case that the named heir or heirs now have full rights to specific real property. It is only logical to make this case as firmly and persuasively as possible.
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). Crafting a thorough and effective affidavit is both art and science and should be left to an attorney who will assure that its contents are both admissible and persuasive in any future litigation. Accordingly, Internet forms should never be used for this or any other serious legal purpose.
The affidavit of heirship will generally be presumed to be true after it has been filed of record for at least five years, although no title underwriter is bound by this.
Preparation of the Deed
The second step in the process, after drafting, execution, and filing of the affidavit, is a deed transfer that focuses title into a single heir who may then keep the property or sell it. Alternatively, all heirs may (for example) 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 may 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 a result more confusing and chaotic than when they started. Affidavits and deeds may then have to be re-prepared and refiled in order to correct the record, prolonging the process and increasing expense.
The Utility of a Title Report
Clients occasionally request that their attorney prepare an affidavit of heirship but have only partial information as to the totality of the circumstances (events may be decades in the past) and be in possession of only some of the documentation relating to the property and its history. In such cases, it is helpful to begin the process by obtaining a title report from a title company that will clarify the current status of title as well as any recorded claims, liens, notices, and other matters of potential relevance. With a title report as a factual resource, the attorney can have more confidence that facts recited in the affidavit of heirship are in fact true and correct, making the affidavit less likely to be the subject of a later challenge.
From Our Case Files
A prospective client calls 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. This will almost certainly require opening an estate case in probate court. The client is suspicious. He says, “Look, your secretary told me that the fee for a deed is $550. 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 such as these can receive a binding adjudication.
Information in this article is provided 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 © 2022 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, www.LoneStarLandLaw.com.