DECLARATION OF HEIRSHIP
If you merely need to prove the title to land or something similar, you may only need a Declaration of Heirship. This procedure is available even when the decedent did not leave a will and there is no need to sell assets to pay estate debts. No continued court supervision is necessary.
Procedure and Cost
Although circumstances differ, our offices can usually do a declaration of heirship for as little as $1,650 plus court costs. Contact our office for exact information.
Why Affidavits of Heirship Don’t Usually Work
Affidavits of heirship are a shortcut procedure largely unauthorized by statute. The only statute that makes them effective is Texas Estates Code section 210.053 which states that a good faith purchaser, without the knowledge of an heir, can rely on an affidavit of heirship to obtain good title to property, except against certain undisclosed children of the decedent. That statute does not give a buyer, or more importantly the title insurance company, much comfort. The buyer must act 1) in good faith; 2) without knowledge of other heirs; and 3) still some children can attack the sale. Put another way, an affidavit of heirship is about as good as the buyer, or other person dealing with the estate, wants to treat it. Estates Code section 203.001 allows a court to accept an affidavit of heirship as being a true statement of the heirs after it has been on file for FIVE years! That is a long time to wait to make sure your title is good, and even then, someone can offer contrary proof and convince the court otherwise.
Affidavits of heirship are used to “clean up” defective land titles where the title company deems that there is a low risk of an unknown heir. What the title company determines to be a “low risk” is up to them at that time. Thus, unless you have a contemplated transaction that you can get the title company to review, no one can give you an opinion that an affidavit of heirship will work. The most common case where affidavits of heirship usually work is when a couple owned a home, one spouse dies and no probate was done, then the second spouse dies leaving a will leaving everything to the mutual children of the couple. In those cases, most of the time, the title company will accept an affidavit of heirship.
Affidavits of heirship rarely convince a bank to release an account, an insurance company to pay a policy, or a stock transfer agent to transfer stock. Full probate proceedings are almost always necessary in these cases.
Thus, affidavits of heirship have little true utility. Cheap, they are. Effective, they are not.