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Affidavits of Heirship – To Use Them or Not to Use Them?


Kevin Spencer
Heirship Dispute in Texas

Affidavits of Heirship can be a difficult area of law to understand. At the Spencer Law Firm, we’re here to walk you through it. The Texas Estates Code allows for the use of Affidavits of Heirship, meaning, a court shall receive Affidavits of Heirship in (a) a proceeding to declare heirship or (b) a suit involving title to property to establish prima facie evidence of the statement of “family history, genealogy, marital status or the identity of heirs” if the statement is signed and legally acknowledged or sworn to or the statement is contained in a court judgment AND the statement has been on file in the deed records of the county where the title suit is filed or the county of the decedent’s domicile and fixed place of residence at the time of death. Prima facie evidence, simply, means there is enough evidence to create a presumption that the statement is true.

Determining When to Use Affidavits of Heirship

The key point to remember and the determining factor in whether to use Affidavits of Heirship is that they do not and cannot transfer title to anything the Decedent owned. Affidavits of Heirship are evidence of title because they are one person’s opinion about title, but they merely create a presumption of title. The reason is they are only as good as the knowledge of the affiant – the person giving the statement. Different people have different histories and knowledge of the Decedent and his marital and family history. Some may have known the Decedent for 40 years whereas another may have known the Decedent for the last 5 years of life and bases his or her knowledge on hearsay or assumptions; one may have been closer to the decedent than the other. So there is quite an array of varying levels of knowledge about a decedent’s history. Obviously, no one can rely upon such statements as a title transfer mechanism. There must be more to actually transfer title, such as a probated Will or a Judgment Declaring Heirship.

Evidence of Heirship

In an heirship proceeding, the Court shall receive an Affidavit of Heirship as some evidence of heirship, but it can be refuted by presentation of true facts as seen below. The Court is duty bound to appoint an attorney ad litem for unknown heirs to investigate to ascertain if anyone interested in the estate is excluded. Upon presentation of evidence and the report of the attorney ad litem, the Court will find for all time the persons entitled to inherit from the estate of a person who died intestate or without a will. Such a finding is binding on the world and actually transfers title to the assets of the Estate. When it comes to transferring title to property or an interest in a claim against another person, Affidavits of Heirship should not be relied upon for anything. For purposes of transferring title, they are not worth the paper they are written on. No one should be confused about the effect of an Affidavit of Heirship on title versus the effect of an actual title document like a Judgment Declaring Heirship.

Affidavits of Heirship Does Not Transfer a Title

There is some misconception that Affidavits of Heirship actually transfer title, which they do not. Because of the misconception, some attorneys or parties to a lawsuit or settlement think they can cut corners by using Affidavits of Heirship instead of filing to obtain a court ruling in a Judgment Declaring Heirship. They do so at their own peril. Does an estate entitled to receive a payment from a party via a settlement need to obtain an heirship determination? In my opinion, yes, but It depends on who you are dealing with as a paying party. If the paying party does not require you to get more, then use Affidavits of Heirship. I, personally, do not see their purpose and do not think they are worth the paper they are written on.

If the parties want it to be done right or the receiving party is dealing with a paying party that wants to make sure the releases it receives are iron-clad (or as iron-clad as they can be), then a court must appoint a personal representative of the estate to make sure the estate is bound OR get a Judgment Declaring Heirship to make sure ALL heirs have been determined and there are no others and then get all of them to bind the Estate or, better put, the heirs, i.e., the people that own the Estate’s interest. Either works.

Declaring Heirship in Texas

A paying party relying on Affidavits of Heirship is swimming in shark infested waters because he/she/it does not know if the persons signing actually own the interest or if they represent the entirety of the estate’s interest. Affidavits of Heirship are only as good as affiant’s knowledge and are only a semblance of interest or title. It is not until an AofH has been on file in the Deed Records for 5 years that it becomes prima facie evidence of title (Texas Estates Code §203.001(a)(2)); but, prima facie evidence, is NOT actual title and may be refuted by any interested person upon presentation of evidence of true facts (Texas Estates Code §203.001(b)). A Judgment Declaring Heirship actually and legally transfers title, so the paying party knows, who actually owns the interest.

Of course, the party receiving the payment does not care as long as he/she/it receives payment; unless of course, a long lost heir comes forward looking for his or her share from the recipient. In such event, I would direct them to the paying party. There are mechanisms for correcting an heirship for up to two years after the order is entered (statutory Probate Bill of Review), but there has to be substantial error on the face of the record and the Attorney Ad Litem for Unknown Heirs would be questioned about why a new heir has come forward that was not found before. It can get way more complicated, which is deeper “into the weeds” and is for another blog, but, the point is, it becomes a fight between the heirs, rather than between the paying party and the recipient party or parties. Long-story-short, the best way for the paying party to get a full release is to obtain it from the personal representative of the Estate and then pay the decedent’s share into the Estate; then any issue with who should get a share is the problem of the PR, not the paying party.

Dallas Probate Attorney’s Final ThoughtsSpencer Law Dallas, TX

My recommendation: In the best interests of all involved, get a personal representative appointed to re-agree to the mediated settlement agreement binding the estate to its terms; alternatively, if there is no other reason or need for an administration, get a Judgment Declaring Heirs, so all parties can feel sure they are dealing with the correct parties with actual title.

By: Kevin Spencer

If you need a Judgment Declaring Heirship, please contact us at (214) 965-9999 and we will get it done for you as quickly as the law and the courts allow.

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