Is There an Alternative to Probate? Here’s What Texas Law Allows

Many heirs question whether an Affidavit of Heirship may be used in lieu of probating a will to pass title to real estate. The answer is maybe.

• If the beneficiary of the will is the exact same person or persons as the heir who would inherit the property under Texas intestate law (which would apply in situations where there was no will, or no will was probated in four years), then an Affidavit of Heirship can be used.

• If the will leaves assets to a person or entity different than the heir who would inherit the property under Texas intestate law, then an Affidavit of Heirship cannot be used.

• If an owner of real property passes away without a will, or if the heirs do not probate an existing will within four years after death, the Texas intestacy laws determine the identity of the legal heirs of the decedent (the deceased person). In order for the real property records to reflect the new owners of the property resulting from the decedent’s death, it is necessary to file an Affidavit of Heirship of record.

• Affidavits of Heirship must be signed by in front of a notary public by three persons who are familiar with the facts surrounding the birth, life, family history and death of the decedent. One of those signers may be an heir; however, the other two signers need to be disinterested parties that will not inherit any assets of the decedent (such as friends, neighbors, clergy or distant relatives).

• In Texas, the probate process is not overly expensive or time-consuming, and may be beneficial for specific assets other than real estate.

We strive to offer solutions that are as simple as possible, but there are several steps that must be followed for this alternative. If you have any questions regarding the use of an Affidavit of Heirship in lieu of probating a will, please contact Jeff Rattikin at rattikin@rattikinlaw.com.