Transcribed from Rick Guerra – Guerra Days Law Group Real Estate Attorney
When a person dies without a will, the law declares them to have died intestate. If they died owning real or personal property there may be a necessity for heirs to open a probate case in order to have a court of law convey or pass the property to the rightful heirs. The timeframe to open a probate case is 4 years from death. But what happens if the heirs don’t file with the probate court within four years? Fortunately, Texas law has other methods to convey the real property. One of the most popular and cost effective is the affidavit of heirship.
An affidavit of heirship is a document filed in the county records that declares or identifies the heirs of a deceased person. This document can then be used to transfer title from the decedent’s name into the names of the heirs without having to go through the probate process. Affidavits of heirship are more cost effective and quicker to transfer real property than the traditional probate process because they don’t require a court proceeding. However it is important that they don’t work in all situations and title companies may raise issues if the heirs attempt to sell or convey the property to a third party. Generally after 5 years, an affidavit of heirship that is filed correctly and accurately is presumed to be valid.
To be effective, the affidavit of heirship must be signed by two disinterested witnesses with personal knowledge of the decedent’s family and marital history. The affidavit must be signed and notarized. The most important part of the document is that witnesses must attest to personal knowledge that the heirs listed on the affidavit are true and correct.
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