Affidavits of Heirship in Texas

Topics Covered

Goals of an Affidavit of Heirship
Contents of the Affidavit
Homestead Versus Non-Homestead Property
Title Company Requirements
Consolidating Title to Real Property

GOALS OF AN AFFIDAVIT OF HEIRSHIP

Heirship Property

Title vested in the name of a deceased person (heirship property) is unsellable as it is. Clearly, action is required, either in probate court or by means of an affidavit of heirship that is recorded in the county clerk’s real property records. The objective of an affidavit is to provide information about family history and circumstances that is sufficient to reestablish the chain of title out of the deceased person.

Personal Knowledge

The affidavit must be signed under oath by a person familiar with facts relating to family circumstances and history. This is 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 recorded in the county where the property is located. If the property overlaps county boundaries, then a duplicate affidavits should be recorded in each county where the property makes an appearance.

Affidavits Recorded for Five Years

A successful affidavit of heirship is a duly-executed and recorded instrument in satisfactory form that builds credibility over time so long as there is no legal challenge. Estates Code Section 203.001 states that “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).

CONTENTS OF THE AFFIDAVIT

Form of the Affidavit

Estates Code Section 203.002 provides a minimal non-mandatory form for an affidavit of heirship. As a practical matter, this form is not sufficient for dealing with title companies—and it is title company underwriting requirements that drive this process, since the objective is to establish a chain of title with which a title company will be satisfied.

A well-drafted affidavit of heirship will:

(1) thoroughly review relevant family facts, including whether or not the deceased died with (or without) 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 index and record the instrument within the intended chain of title; and

(3) reach a clear and 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 heir 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 recording an affidavit of heirship, an affiant is making a case for the reader—the case that the named heir or heirs should have full rights to specific real property. It is only logical to make this case as firmly and persuasively as possible.

Prima Facie Evidence of the Facts

An affidavit of heirship should be a custom document that adequately describes family history and identifies the lawful heirs. These recitals are then presumed to be true unless contradicted. Estates Code Section 203.001 states in part:

Est. Code Sec. 203.001. Recorded Statement of Facts as Prima Facie Evidence of Heirship

(a) 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 [contained in an affidavit of heirship] as prima facie evidence of the facts contained in the statement if:

(1) the statement is contained in: (A) an affidavit [of heirship]; or (B) a judgment of a court of record; and

(2) the affidavit [of heirship] has been of record for five years or more in the deed records of [the county where the property is located]. . . .

HOMSTEAD VERSUS NON-HOMESTEAD

Heirship Affidavits for the Homestead

Affidavits of heirship fall generally into two categories: homestead and non-homestead. Section 2005.006 of the Estates Code addresses this specific situation:

Est. Code 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 a [recorded affidavit of heirship] that meets the requirements of this chapter. . . .

(b) 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. . . .

(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 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.

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. To be given effect, 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.

Heirship Affidavits for Non-Homestead Property

The second general category of heirship affidavit encompasses attempts to cure and consolidate title to real property other than the homestead—rental property, for example, or perhaps the family ranch. These cases are can be complicated and therefore an heirship 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 simpler 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: (1) all potential heirs join in executing a deed or (2) a judgment determining heirship be obtained from a probate court.

TITLE COMPANY REQUIREMENTS

An affidavit of heirship is often required by a title company to cure title issues that are described in Schedule C of 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.

Unless there is an acceptable affidavit of heirship or an administration of the estate that results in an order determining heirship, a title company will likely seek to “identify the heirs of the decedent, along with the devisees in any unprobated will, and require that all of them join in a conveyance of the property of the decedent.” Standard 11.50, Texas Title Examination Standards.

Individual title underwriters vary in their requirements when it comes to heirship affidavits. An authoritative guideline is found in Standard 11.70 of the Texas Title Examination Standards which states:

Standard 11.70. In the absence of information to the contrary, [a title company] examiner may rely upon an affidavit of heirship with respect to the family history and the identity of heirs of a decedent.” In the comments that follow, it is noted that a title “examiner commonly relies upon affidavits of heirship when the family history and the identity of the heirs of a decedent are not otherwise known. Heirs can also be determined in an action to declare heirship as provided in Tex. Estates Code Sec. 202.001-202.206. . . . In obtaining an affidavit of heirship, it is desirable for the affiant to be a person related to the decedent but who does not inherit from the decedent. If none is available a person possessing personal knowledge of the decedent is the next choice. If neither is available, an interested heir can be used.

Prevailing Title Company Standards

The following heirship affidavit rules promulgated by American Title Company are typical in the industry:

(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 should 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 will be satisfied by nothing less than a precise and reliable result then the better alternative is to seek a declaratory judgment from a probate court.

CONSOLIDATING TITLE TO REAL PROPERTY

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.

As previously noted, the affidavit of heirship will 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 recording of the affidavit) is a deed transfer that consolidates title into a single heir who may then keep the property or sell it. Alternatively, all heirs may (for example) join in executing a deed conveying the property to a third-party buyer.

The deed is usually a special warranty deed or deed without warranties, but not a quitclaim 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.

Usefulness of a Title Report

Clients occasionally request 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 may be 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.

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 or policy;

(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? Sell the property to a third party?