How to Draft an Affidavit of Heirship
This article was written by the Earl Carl Institute for Legal and Social Policy. It is designed to help you create your own affidavit of heirship. It is not a fill-in-the-blank form or a substitute for the advice and skill of a licensed attorney.
An Affidavit of Heirship or Affidavit of Heirship Concerning the Identity of Heirs is authorized by Texas Estates Code sections 203.001 through 203.002. When a decedent—that is, a person who died—leaves behind real property, an affidavit of heirship can be used to transfer the decedent’s interest in real property to their heirs at law. Most of the time, an affidavit of heirship is used when the decedent did not leave a will (that is, died intestate) or did leave a will, but the will was not probated (that is, did not go through the proper legal process) within four years of the deceased’s death.
An affidavit of heirship must be signed and sworn to before a notary public by a person who knew the decedent and the decedent’s family history. This person can be a friend of the decedent, an old friend of the family, or a neighbor, for example. If you cannot find an unrelated person, then a family member who will not benefit financially from the filing of the affidavit of heirship may sign. You need to find two people who knew the deceased, because each person needs to sign an affidavit of heirship.
An affidavit of heirship must be filed with the real property records in the county where the land is located. Call the county clerk and ask how much their filing fees are. The filing fees vary from county to county. The first page usually costs more than the other pages. A fee of $15 for the first page and $4 for each additional page is common. Ask if you can file the two affidavits of heirship as one document. Some counties let you file the two affidavits of heirship as one document if the decedent and property descriptions are the same. This is less expensive than filing the affidavits of heirship as two documents.
You can find a sample affidavit of heirship by downloading the following document, sample affidavit of heirship. This sample is not provided for you to fill in the blanks. It is meant to help you draw up your own affidavit of heirship. It is an example of the most common situations seen when drawing up an affidavit of heirship.
< > tells you the type of information that needs to be filled in.
( ) is a direction to let you know whether the paragraph applies.
If any of the information doesn’t apply for your decedent, don’t include it when drafting the affidavit. This sample was prepared for a hypothetical decedent who was married twice. The first spouse died, and the second marriage ended in divorce. If the decedent only had one marriage, leave out the information about the second spouse. If the decedent was married three times, then add a spouse.
The information will be different depending on whether the possible heir (that is, a spouse, child, or parent) is alive or dead. If the potential heir is dead, then their children related to your decedent must be listed. See an example of this in Paragraph 8. Paragraph 8a is an example of how that section should read for the decedent’s living siblings. Paragraph 8b shows how that section should read for the decedent’s siblings who have died.
Remember that this is just a template. Don’t file it with real property records as it reads now.