What happens when a property owner dies without leaving a will? (or their family does not want to probate their will)
When an individual owner of property in Texas passes away without a mechanism in place that automatically transfers the property upon the death of the deceased owner (such as a right of survivorship agreement, transfer on death deed, or other beneficiary designation), the property becomes a part of their estate and is distributed to their heirs. There are two ways that an heir can be determined: 1. by the decedent naming them in a properly executed will which would then need to be probated in the appropriate court, or 2. by following the intestacy (dying without a will) laws of the State of Texas. Many “owners” of real property are surprised to find out that they do not own exactly what they thought they did, as a deceased spouse, parent, or other family member’s interest in the property has vested with another heir. Further, even if the surviving family member is entitled to the property, the title company is likely to require evidence recorded in the public records to confirm their ownership claim. When a will is probated, the executor administering the will provides such evidence to the heirs with an executor’s deed. When there is no will, or the family chooses not to probate it, an affidavit of heirship can be recorded in the public records to satisfy title company requirements.
What is an affidavit of heirship?
A proper affidavit of heirship will state pertinent information about the deceased, their family, and their estate that is outlined in Section 203.002 of the Estates Code and satisfies title insurance underwriting requirements. In most cases, the affidavit of heirship will need to be signed by two disinterested witnesses who knew the decedent for at least ten years. A disinterested witness is someone who will not inherit any property from the decedent. Some of the key factors that will need to be noted on the affidavit of heirship are:
decedent’s date and location of both their birth and death,
the complete marital history of the decedent,
a complete list of the decedent’s children, their birthdays, and their current addresses (if they did not have any children and were not married, further familial information will be necessary),
a list of all of all of the real property owned by the decedent,
a statement regarding any outstanding or unpaid claims against the decedent’s estate, and
a statement regarding whether the decedent left a will.
While the Estates Code has a suggested form, the title insurance company who insures the transaction has more stringent requirements.
These requirements vary depending on the underwriter. It is very important to have a conversation with your title insurance company as soon as possible if you believe that you may be using an affidavit of heirship in a real estate sales transaction or refinance.
Where does property go?
When the above-mentioned marital and other familial information is provided, a Texas attorney or title insurance underwriter can clearly identify the proper heirs. Here are a couple of the most common scenarios:
Joe was married to Mary, and Joe only had 3 children all with Mary. Joe passed away in 2020. In this case Mary will inherit all of Joe’s community property.
Joe was married to Mary, and Joe had 3 children with Mary, but they divorced and Joe married Jane. Joe died in 2020. Here Jane would retain her 1/2 of the community property, but Joe’s three children from his first marriage would receive the other 1/2 interest (each taking 1/6) in all of the community property.
Same as above accept Joe and Jane also had one child together. Here Jane would still take her ½ of the community property, and Joe’s four children take ½, but now they would each get a 1/8 interest.
These are just some of the many situations that we see. The familial line and shares can get very extensive. If a spouse and/or children do not exist, parent, siblings, and cousins can all be included until the proper living family members are ascertained.
One common mistake that we have seen many times is that people do not understand what taking ½ of community property means. With Texas being a community property state, the general rule is property obtained during a marriage, with a few exceptions including gifts and inheritances, is considered community property and each spouse is entitled to ½ share. Note that in examples 2 and 3 above, Jane only receives ½ of the interest in her house, and Joe’s children split the other half. This means that if the home were sold and to net $500,000, Jane was only entitled to $250,000. Often, people are confused thinking that Jane would get her $250,000 plus half of Joe’s interest, this is incorrect.
Can I use an affidavit of heirship if the decedent left a will?
The short answer is yes, just because someone left a will does not mean that the will has to be probated. In fact, if a will is not probated in the first four years after an individual’s death, the courts may not allow it to be admitted for probate. The properly drafted affidavit of heirship will note whether the decedent left behind a will or not.
If there is a will, most title insurance underwriters will require that the will be attached to the affidavit. More often than not, the intestacy laws that govern who will inherit a deceased individual’s property match what an individual has put in their will. The Texas legislature default rules intentionally fulfill what they believe to be the most common situations, and this is generally to have a spouse and/or children inherit. However, if a decedent’s will states that their property goes to someone other than what the Texas Estates Code indicates, the underwriters will have additional requirements including some sort of joinder of the noninheriting beneficiaries.
Where do I start?
This is just a brief overview of the many intricacies of the affidavit of heirship process. It is important that work with an attorney to ensure that the instrument is properly drafted, executed, and recorded. Also, if you are concerned about the intestate succession process and want to have more control of where your property will go upon your death schedule a consultation with us, and we can help you draft a will and utilize other automatic transfer tools that are available and would save your family both time and money.