I decided to talk briefly about Affidavit of Herishps (hereinafter Affidavit) and the effective use here in Texas.  In our practice, we often come across these documents when reviewing title.  We have prepared them in certain circumstances.  Primarily, the property most “impacted” by this document is real property.  As with most things in life, the document is neither good nor is it bad.  It is an added tool in primarily in Texas Probate and Real Property transaction.  It has its appropriate place and has a long history of being used in Texas.

What is an Affidavit of Heirship?  An Affidavit of Heirship is ‘a statement of facts concerning the family history, genealogy, marital status or the identity of heirs of a decedent.’ (1)  The Texas Probate Code identifies the section as “Recorded Instruments As Prima Facie Evidence.”  In short an Affidavit of Heriship is an affidavit which a person files in the county records outlining the decedents family history and the identity of heirs.  Probate Code Section 52 outlines the statutory basis but the use of the affidavit has been in use in Texas for a long time prior.  (Commentary by in Texas Probate Code Annotated and Annotated by Professor Stanley M. Johnson discusses the history an impact. 2008 Edition).

Using this type of affidavit puts “the world” on notice of a decadent’s family history.  When filed in the county clerk’s records, it evidences the change in title of real property.  Notice I say “evidence” the change in title.  The affidavit does not “pass title.”  It is not a conveying document.  The “passing” of title occurs as an operation of law, by some other proceeding or document.  This is a minor but important distinction because others will look to the law or documents other determine ownership and use the affidavit for the facts in that determination.

Companies, title companies, title examiners, and others may use the affidavit in determining the appropriate heirs and who has an interest in property.  I say “may” because a person is not required to rely on the affidavit.  It is not an order by a court and it is often times sworn to by an interested party (e.g. the person who stands to gain by the declarations in the affidavit.)   He/she stands to take an interest in the property and he/she is the one making the affidavit.  Further, if it was recently filed it is less likely to be relied on.  In fact, the “statutory” presumption of prima facie evidence is not assumed until after five (5) years.  (2).   If the decadent left a will and and he/she passed away in the last four years, the affidavit may not be relied on because the heirs under the will may still probate the will.

My experience in the reliance on the affidavit to transfer title to real property has been mixed.  It has varied between title companies.  Most of the title companies I have encountered have, at minimum, the affiant (the one making the declaration) and at least two witnesses, one of which who is interested.  You will notice that this is not a statutory requirement.  This is purely a requirement by the title company.  I have heard from colleagues who have encountered title companies who require the affiant and all the heirs sign the affidavit.  Other companies have required the affidavit to  be at least 10 years old.

With all the uncertainty of whether others will rely on the affidavit, why use it?  Well, for one it is inexpensive to produce and allows one to evidence a change in title.  If there are not a lot of assets of the decedent and the primary asset is marital community homestead, an affidavit of heirship may be the way to go.  If there are children outside the marriage, contentious family affairs, or a large estate, (to name a few) then the use of an affidavit of heirship to assist in clearing the decedent’s interest is probably not the best method.  If you are selling your home or about to purchase a home and an affidavit of heirship is being proposed to clear the interest of a person in the chain of title to the property, you probably want to consider your options.  At minimum, I would contact the title company your plan on using to insure your title and verify what they will require prior to insuring title to the property.  Even better would be to contact an attorney to discuss your options.

The use of non-statutory and statutory affidavit of heirships have been used to evidence a change in title for real property throughout Texas history.  There are times when using Affidavit of Heirships makes since.  There are times when they do not make since.

Sec. 52. RECORDED INSTRUMENTS AS PRIMA FACIE EVIDENCE.  (a) A statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent shall be received in a proceeding to declare heirship, or in a suit involving title to real or personal property, as prima facie evidence of the facts therein stated, if the statement is contained in either an affidavit or any other instrument legally executed and acknowledged or sworn to before, and certified by, an officer authorized to take acknowledgments or oaths as applicable, or any judgment of a court of record, and if the affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real or personal property is located at the time the suit is instituted, or in the deed records of any county of this state in which the decedent had his domicile or fixed place of residence at the time of his death. If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts may be proved by anyone interested in the proceeding in which said affidavit or instrument is offered in evidence.

(b) An affidavit of facts concerning the identity of heirs of a decedent as to an interest in real property that is filed in a proceeding or suit described by Subsection (a) of this section may be in the form described by Section 52A of this code.

(c) An affidavit of facts concerning the identity of heirs of a decedent does not affect the rights of an omitted heir or a creditor of the decedent as otherwise provided by law. This statute shall be cumulative of all other statutes on the same subject, and shall not be construed as abrogating any right to present evidence or to rely on an affidavit of facts conferred by any other statute or rule of law.

Texas Probate Code Section 52

Sec. 52A. FORM OF AFFIDAVIT OF FACTS CONCERNING IDENTITY OF HEIRS.  An affidavit of facts concerning the identity of heirs of a decedent may be in substantially the following form:

AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS

Before me, the undersigned authority, on this day personally appeared __________ (“Affiant”) (insert name of affiant) who, being first duly sworn, upon his/her oath states:

1. My name is __________ (insert name of affiant), and I live at __________ (insert address of affiant’s residence). I am personally familiar with the family and marital history of __________ (“Decedent”) (insert name of decedent), and I have personal knowledge of the facts stated in this affidavit.

2. I knew decedent from __________ (insert date) until __________ (insert date). Decedent died on __________ (insert date of death). Decedent’s place of death was __________ (insert place of death). At the time of decedent’s death, decedent’s residence was __________ (insert address of decedent’s residence).

3. Decedent’s marital history was as follows: __________ (insert marital history and, if decedent’s spouse is deceased, insert date and place of spouse’s death).

4. Decedent had the following children: __________ (insert name, birth date, name of other parent, and current address of child or date of death of child and descendants of deceased child, as applicable, for each child).

5. Decedent did not have or adopt any other children and did not take any other children into decedent’s home or raise any other children, except: __________ (insert name of child or names of children, or state “none”).

6. (Include if decedent was not survived by descendants.) Decedent’s mother was: __________ (insert name, birth date, and current address or date of death of mother, as applicable).

7. (Include if decedent was not survived by descendants.) Decedent’s father was: __________ (insert name, birth date, and current address or date of death of father, as applicable).

8. (Include if decedent was not survived by descendants or by both mother and father.) Decedent had the following siblings: __________ (insert name, birth date, and current address or date of death of each sibling and parents of each sibling and descendants of each deceased sibling, as applicable, or state “none”).

9. (Optional.) The following persons have knowledge regarding the decedent, the identity of decedent’s children, if any, parents, or siblings, if any: __________ (insert names of persons with knowledge, or state “none”).

10. Decedent died without leaving a written will. (Modify statement if decedent left a written will.)

11. There has been no administration of decedent’s estate. (Modify statement if there has been administration of decedent’s estate.)

12. Decedent left no debts that are unpaid, except: __________ (insert list of debts, or state “none”).

13. There are no unpaid estate or inheritance taxes, except: __________ (insert list of unpaid taxes, or state “none”).

14. To the best of my knowledge, decedent owned an interest in the following real property: __________ (insert list of real property in which decedent owned an interest, or state “none”).

15. (Optional.) The following were the heirs of decedent: __________ (insert names of heirs).

16. (Insert additional information as appropriate, such as size of the decedent’s estate.)

Signed this ___ day of __________, ____.

_________________________________

(signature of affiant)

State of __________

County of __________

Sworn to and subscribed to before me on __________ (date) by __________ (insert name of affiant).

_________________________________

(signature of notarial officer)

(Seal, if any, of notary) __________

(printed name)

My commission expires: __________