As a title examiner, one of the more common situations I run into involves properties where the owner has passed away without leaving a will or without the estate going through probate. In those cases, figuring out who legally owns the property becomes a challenge. This is where an Affidavit of Heirship often comes into play.
What Is an Affidavit of Heirship?
An affidavit of heirship is a sworn legal document used to identify the heirs of a deceased person who owned real estate. Essentially, it is a statement made by someone with personal knowledge of the family history who can testify to:
- When the property owner passed away
- Whether the owner left a will (in these cases, usually no will exists)
- Who the legal heirs are under state law
Once properly signed, notarized, and recorded in the county where the property is located, the affidavit serves as public notice of the heirs’ rights to the property.
Why Is It Needed?
In real estate transactions, the chain of title needs to be clear and unbroken. When an owner dies without a will or without going through probate, there’s a gap in the chain. The property is still in the deceased’s name, and there’s no official court order transferring ownership. Without a solution, the property can’t be sold, refinanced, or transferred cleanly.
The affidavit of heirship fills this gap. It provides a documented link between the deceased owner and the heirs so the property can move forward in transactions.
When Is an Affidavit of Heirship Used?
An affidavit of heirship is typically used when:
- The deceased left no will (intestate) and no probate was opened.
- The heirs want to sell or transfer the property, but need to establish their ownership rights.
- The estate is small or uncomplicated, making probate unnecessary or impractical.
- Title insurers need clarity to ensure the property can be conveyed without risk of future disputes.
For example, if a homeowner passes away in Texas without a will, their children may inherit the property under state law. To show their ownership interest, an affidavit of heirship can be filed, verify the new owners and clear the way for a sale.
Limitations to Keep in Mind
It’s important to note that affidavits of heirship aren’t perfect:
- They don’t carry the same legal weight as probate.
- Some states or title companies may not fully accept them without additional documentation.
- If heirs are disputed or unknown, the affidavit may not resolve the issue.
Because of these limitations, it’s always wise for heirs to consult with an attorney before relying solely on an affidavit of heirship.