Kellie F. Stokes, Attorney at Law | Stokes Law Office, PLLC | www.kfslegal.com
When a person dies without a will, there are several pieces of information a law office and/or title company needs from their family in order to settle their assets, or “estate”. One big piece is property ownership: did the person own any real estate? If that is the only asset they own, it is possible to settle the estate by filing an Affidavit of Heirship instead of going to court to appoint a specific person.
In the State of Texas, an Affidavit of Heirship is a sworn statement that lists the details of a deceased person, their heirs, like spouses and children, and property now inherited by the heirs. It is instrumental in determining who owns the property after the death, and who has a right to sign documents when the property is sold.
By law, only one person is required to swear to the Affidavit, but many title company underwriters require one disinterested affiant, one disinterested witness and one related or disinterested witness. While not required by law, this gives extra assurance that the facts of the matter are true and correct.
For example, Betty and Bill are married. Bill has three grown children from a previous marriage, Larry, Sarah, and Nick. Bill dies without a will, and Betty would like to sell the house. Under the intestate laws of Texas, Betty owns 50% of the property and Larry, Sarah and Nick own their father’s 50% of the property jointly. In order to sell the property, an Affidavit of Heirship will need to be filed, and all four, Betty, Larry, Sarah and Nick, need to sign the documents.
An Affidavit of Heirship is the cheapest and quickest way to settle an estate. However, not every situation can be resolved this way. Contact our office for us to determine the correct course for you and your loved one’s estate.
KELLIE STOKES: So let me explain what an Affidavit of Heirship is. I think someone I was talking to said they did it, yeah, when we, yeah, did an Affidavit of Heirship. An Affidavit of Heirship is where people come in and swear to the facts of that person’s life and who the heirs are, a sworn statement. And so, we use Affidavit of Heirships all the time.
I do my darnest to use Affidavit of Heirships, one because it is the cheapest way for somebody to get it resolved, and it is the quickest way. I’m all about, let’s use the cheapest and quickest way. Sometimes that doesn’t always work, but if we can, that’s what I—that is always where I go first.
Um, now an Affidavit of Heirship, for a title company, in order to sell real estate, has to be signed by two disinterested people. So if you ever have a lawyer say, “That’s not what the law says,” well, yes, they’re right, the law says one person, but title companies require two. So, you know, always go to a title company to, er, an attorney with a title company that knows real estate when you’re doing these things because we know what the underwriters require, and that’s why I say it expedites the process, and that’s why I like doing it, is because I can tell people, you know we all have to have our sale pitch, spiel, and that’s kinda what I try to sell, is hey, you have these situations, I know we’re going to do these documents in the way the need, the way, appealing to the title companies, so that we can get it through the process quicker.
An example of that is the Affidavit of Heirship. I mean, I had to fix a number of Affidavit of Heirships over the years that were valid, but not – they didn’t qualify for the title company. Um, but it’s basically a sworn statement that, um, it’s a sworn statement where people are swearing who the heirs are, and then we file that of record and then we work with those heirs. So, understand that under an Affidavit of Heirship, no one has been appointed by the Court to be the person in charge. Does that make sense? We’re just making an affidavit saying this person died, they had these kids, and these kids inherited this property. So now who are you working with?