When a loved one dies without a will, the process of distributing their assets can be a daunting, and often expensive, proposition.  Probating an estate without a will can take months to accomplish, not to mention the hefty attorney’s fees and undue stress to the family and heirs of the decedent.

But when the decedent has only a few assets to distribute – including real estate that requires title to be transferred – an affidavit of heirship can act as a convenient, cost-effective alternative to the probate process.

What is an affidavit of heirship?

At its core, an affidavit of heirship (AOH) is a document used to establish the rightful heirs of an estate.  In that way, it can act as proof of the heir(s) to which title to real estate should be transferred.  To do this, two disinterested witnesses, who do not have a financial interest in the decedent’s assets, must swear to facts related to the decedent’s family and marital history.  Close friends or neighbors are commonly called upon to serve as these witnesses.  Their notarized sworn statements comprise the  AOH, which is then filed in the records of the county where the decedent’s property is located.

To add some real world context, say your spouse passes away without a will, and their name is on the title to your home.  Using an affidavit of heirship to prove that you are your spouse’s rightful heir can allow title to your home to pass to you – or have your spouse’s name removed from the title, while yours remains – without going through the probate process.

Benefits of an affidavit of heirship

• The most obvious benefit of using an AOH versus probating a will is avoiding the probate process altogether. As mentioned earlier, probate can be time-consuming, expensive, and can tie up assets for months or years.  Using an AOH is a faster, simpler alternative that allows heirs to receive a decedent’s assets without the hassle and expense of probate.
• In situations where the decedent’s estate consists primarily of real property and few complex assets, such as business interests and significant investments, an affidavit of heirship is often the simplest and most efficient way to transfer ownership of estate assets to heirs – especially when the real property is mortgage-free.
• Affidavits of heirship can also protect your rights as an heir. Having a formal document that details your relationship with the decedent can help prove your right to an inheritance in the event of a challenge or claim against the decedent’s estate, especially from inside the decedent’s family.  For this reason, the AOH is particularly appropriate when the decedent’s heirs already agree on how the estate’s assets should be divided.
• If heirs find it necessary to sell the decedent’s real property soon after their passing, an AOH can help expedite the title transfer process, allowing for a quicker sale.
• In cases where the decedent had a will, but it was not probated within four years of their passing, an AOH can allow the decedent’s titled property to pass without the need to open an intestate administration in probate court.
• Maybe most important of all, the affidavit of heirship provides peace of mind for the heirs and family of the decedent. The AOH helps ensure the wishes of the decedent are fulfilled, the estate assets are distributed fairly and expeditiously, and helps prevent disputes among family members.

Drawbacks and caveats to using an affidavit of heirship

Generally, if the decedent had a will, it should be probated to allow assets to pass to heirs with the court’s stamp of approval.  But there are certain circumstances where the heirs may choose not to probate the will and instead use an AOH.  For example, if there are very few non-titled assets, like household goods and furniture, which would naturally pass to a surviving spouse or can be agreeably divided amongst heirs, the heirs can use an AOH to effect the transfer of decedent’s real property without having to probate the will.

One caveat to this scenario is that the decedent must not have had any outstanding debts that won’t be assumed by the heirs, including estate taxes or Medicaid reimbursement claims.  If the decedent owes creditors that will not be paid by the heirs, the creditors have to be formally notified of decedent’s passing and given the chance to make a claim against the estate for the debt owed.  In this case, the estate should be probated, and an AOH is not a viable option.

And if the decedent owned property in a state other than Texas, a separate solution would be needed to transfer title of that out-of-state property.  Most states allow affidavits of heirship, but consulting an attorney with expertise in that jurisdiction is recommended.

Also, be wary that some banks and title companies will not recognize an affidavit of heirship, so it’s a good idea to check with your financial institution to ensure the AOH will be accepted and your title transfer will proceed without issue.

TrustBridge Legal can help you avoid probate, pass property to heirs quickly and efficiently, and relieve the stress of your family and heirs.  Contact us for more information or to schedule a free consultation to see if using an affidavit of heirship is a good option for you.