Everything You Need to Know About the Affidavit of Heirship in Texas

Inheriting a family home is essentially a full-time job wrapped in an emotional rollercoaster. If you have recently lost a loved one who didn’t leave a will, you might be staring at the prospect of probate court and wondering if there is a way to avoid the time, expense, and headaches that come with it.

For many Texans, the Affidavit of Heirship is that alternative. It is a legal instrument used to bridge the gap between the previous owner and the heirs without a judge getting involved. However, it isn’t a magic wand, and it isn’t right for every situation.

Note: I am a real estate professional, not an attorney. The following is for educational purposes to help you understand your options. For specific legal advice regarding your estate, always consult a qualified Texas probate lawyer.

Introduction

Let’s start with the basics. In Texas, when someone passes away without a will (known as dying Intestate), the state essentially writes a will for them based on statutory laws of descent. But how does the rest of the world know who inherited the house?

That is where the Affidavit of Heirship comes in. It is a sworn statement of facts filed in the public records that describes the family history and marital status of the deceased. Its primary job is to establish who the legal heirs are so that property can eventually be transferred or sold.

Think of it less like a court order and more like a bridge. It connects the Chain of Title from the deceased person to you, the heir. It is most often used when heirs want to avoid the high costs of formal probate and simply need to update the county records to show that they now own the family home.

When Can You Use an Affidavit of Heirship in Texas?

You might be hoping this document is the solution to all your paperwork problems, but it has specific guardrails. It doesn’t work for every estate.

Generally, this affidavit is an option when the decedent died without a will, or perhaps they had a will, but the family agrees it’s not worth the cost to probate it. It is primarily designed for real property—meaning land and houses.

Here is the catch: it relies heavily on cooperation. It works best when all heirs are in total agreement about who gets what. If there is even a whisper of a dispute among siblings or potential heirs, title companies will likely reject the affidavit and require you to go to court.

Also, keep in mind that while this works well for real estate title, financial institutions can be stubborn. Banks often refuse to accept an affidavit of heirship to unlock checking or savings accounts, preferring court-issued letters instead.

Texas Requirements for a Valid Affidavit of Heirship

You can’t just write a note on a napkin and file it. The Texas Estates Code is very specific about what makes this document valid. If you miss a step, the county clerk might record it, but a title company might ignore it later when you try to sell.

The document must be in writing, signed by an heir, and notarized. It needs to contain an exhaustive amount of detail, including the deceased’s marital history, list of all children (adopted or biological), and descriptions of the property.

The Critical Role of Disinterested Witnesses

This is the part that trips up most people. To support the affidavit, you must have two disinterested witnesses sign the document as well.

Who counts as “disinterested”?

• They must know the deceased well (usually for 10+ years) to verify the family history.
• They cannot benefit financially from the estate.
• They cannot be a family member who might inherit.

Think of a long-time neighbor, a church friend, or a hunting buddy. If you use your brother or your spouse as a witness, the document usually won’t hold up. Under Texas Estates Code Section 203.002, having these independent verifications is what establishes the document as prima facie evidence of the facts.

Step-by-Step: How to File and Record the Affidavit

Once you have determined this is the right path, the process is fairly administrative. It’s about being precise and following the order of operations.

1. Gather Your Facts Before drafting anything, you need a clear family tree and the legal description of the property (which you can find on the previous deed or tax records). You need dates of birth, dates of death, and marital dates.
2. Draft the Form While there are free forms online, be very careful. Texas title companies are picky. It is often worth paying a professional to draft this to ensure it meets the specific requirements of the title underwriters.
3. Execution You (the heir) and your two disinterested witnesses must sign the document in front of a notary public. This doesn’t have to happen all at once; separate notary acknowledgments are fine, but everyone must sign.
4. Recording Take the original, notarized document to the County Clerk’s office in the county where the property is located. You will file it in the Real Property Records. The filing fees vary by county but usually land between $25 and $75 depending on how many pages the document is.
5. Notifications Once recorded, don’t forget to send a copy to the local appraisal district so they can update the tax rolls, and send a copy to any title company if you are in the process of selling.

Does It Actually Transfer Title? Limits and Risks

This is the most common misconception. An Affidavit of Heirship does not transfer a deed the way a home sale does. It doesn’t instantly grant you “perfect” title.

Instead, it creates a presumption of ownership. It effectively puts the world on notice that “based on these facts, these people are the owners.”

There is a “five-year rule” in Texas (Section 203.001). The statute states that after the affidavit has been on file for five years, it becomes strong evidence of the facts therein. Before that five-year mark, title companies may be hesitant. Some might require all the heirs to sign a deed during a sale, or they may simply refuse to insure the title for a few months to ensure no other heirs come out of the woodwork.

There is also the risk of challenge. Since a judge never ruled on this, a creditor or a previously unknown heir can technically contest the affidavit. This is why it’s generally considered a “clean” solution only for very straightforward, debt-free estates.

Affidavit of Heirship vs. Small Estate Affidavit vs. Probate

If you are trying to figure out where you fit in the Texas probate process, here is a quick comparison of how the Affidavit of Heirship stacks up against the other common options.

Affidavit of Heirship

• Best for: Real estate only, when heirs get along.
• Pros: No court appearances, cheapest option, fastest to record.
• Cons: Doesn’t always work for bank accounts; title companies view it as higher risk.

Small Estate Affidavit

• Best for: Estates valued under $75,000 (excluding the homestead) where there is no will.
• Pros: It is a court-approved order, so banks usually accept it. Great for transferring small estates that include a bank account and a house.
• Cons: Strict value caps apply. If the estate has a lot of other assets, you can’t use this.

Full Probate (Letters Testamentary)

• Best for: Complex estates, disputes, or when there is a valid will.
• Pros: Cleanest title transfer, cuts off creditor claims faster, gives the executor full authority.
• Cons: Most expensive and slowest method.

Frequently Asked Questions