The Only Asset They Left Is a House- Do We Have to Probate the Estate?
An Affidavit of Heirship is a legal document used in Texas to transfer ownership of real property when someone dies without a will (intestate), and probate is either unnecessary or impractical. It’s a sworn statement that identifies the heirs of the deceased based on Texas inheritance laws.
This affidavit does not go through the court system. Instead, it’s signed by two disinterested witnesses (people who are not heirs and do not stand to gain anything) who knew the deceased and can confirm family relationships. The completed affidavit is then filed in the county property records, where it serves as a public record of ownership.
When Is an Affidavit of Heirship Appropriate?
Affidavits of heirship are most effective in simple estates—especially when:
The only asset is a house or land
There is no will
All heirs agree on who inherits
There are no outstanding debts that require probate
There is no expectation of disputes among family members
This approach is especially helpful for families who want to update the title to the property without the delays and expenses of probate court. Once filed, the affidavit can help establish a clear line of ownership, which is important when selling, refinancing, or paying taxes on the property.
What’s Included in an Affidavit of Heirship?
The affidavit typically contains:
The full name, date of death, and place of death of the deceased
A statement that the deceased died without a will (if true)
A complete list of heirs and their relationship to the deceased
A family history (marriages, children, deceased relatives)
A legal description of the property
Signatures from two disinterested witnesses
Notarization of all signatures
After it’s completed, the affidavit is filed with the county clerk where the property is located. While it doesn’t automatically transfer title in the way a probate order does, it serves as evidence of heirship that many title companies and financial institutions will accept—especially if it’s been on record for several years.
Benefits of Using an Affidavit of Heirship
Avoids Probate Court
Probate can take months and involve attorney fees, court costs, and potential family conflict. Filing an affidavit is a much quicker, more cost-effective solution for transferring real property.Public Record of Ownership
Filing the affidavit in the county property records puts the world on notice that the heirs are now the rightful owners, helping with tax issues, maintenance decisions, and eventual sale of the property.Simple and Accessible
The form is relatively straightforward and can often be prepared with minimal legal assistance. This makes it an accessible solution for low-value estates or families with limited resources.
Limitations to Consider
While affidavits of heirship are a useful tool, they do have some drawbacks:
They only apply to real property (not bank accounts, vehicles, or personal belongings).
They don’t remove liens or address outstanding debts.
Title companies may be reluctant to accept them if they’re recent or if there is any dispute among heirs.
They don’t carry the same legal weight as a court order, which may become an issue in future transactions.
In some cases, even when a house is the only asset, families may still benefit from a small estate affidavit or simplified probate proceeding, especially if there are multiple heirs or creditor claims involved.
In Summary
When the only asset left behind is a house, Texas families may be able to bypass probate by using an Affidavit of Heirship. It’s a practical and affordable option that helps heirs establish ownership and move forward without lengthy court proceedings. While not suitable for every situation, it can offer peace of mind and a clear path forward—especially in the absence of a will. As always, consulting with an experienced attorney can help ensure you choose the best approach for your family's unique circumstances.
