Where There's No Will, There's A Way

Real Estate Agent with Texas Pride Realty Group Brokered by HomeSmart Stars TX #0552717

In Texas, if a homeowner dies intestate (without a will) or there is a will but it hasn't been probated, it can be tricky selling the house. To protect themselves, title companies will require an Affidavit of Heirship.

Affidavit of HeirshipThe reason the Affidavit of Heirship is needed is to determine who the new rightful owner of the property is. Texas is a community property state, so what is community property and what is separate property (property acquired through gift, inheritance, settlement, etc.) must be established.

An Affidavit of Heirship should be completed by the affiant, the person in the family of the deceased alleged to be the new owner. It includes the names of two witnesses who have known the deceased for at least 10 years and who do not inherit any property, real or personal. Each witness completes a questionnaire and an affidavit attesting to the marriages, children, deaths in the family, etc. so that the title company underwriter can be certain of who should inherit the real property.

The affiant and both witnesses must have their affidavits notarized. 

It can get complicated. It is best to have the title company attorney prepare the affidavits and the questionnaires rather than an outside attorney.

Often, the affiant does not know the answers to all the questions. In that case, a private attorney is sometimes hired. Or, the court can appoint an attorney ad litem to discern the determination of heirship, but then the Affidavit of Heirship procedure continues once the information has been obtained.

All this can be avoided if the property owner has a valid will and the will goes through the probate process. However, sometimes even if there is a will, an Affidavit of Heirship is used. Probate can take 60-90 days around here, or longer if there are challenges. The affidavit processes can usually be completed in a shorter period of time and is less expensive (if a private investigator is not needed).

Bottom line: try not to die without a will in Texas. Or anywhere else!

Posted by

Lorrie Semler, REALTOR
HomeSmart Stars

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Comments (11)

Joseph Lorenzo
Frank Rubi Real Estate LLC - Harahan, LA
Your Law And Order Realtor

Excellent information.Thank you for sharing. Have a wonderful day!

Jun 07, 2023 10:30 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Joseph Lorenzo You're welcome! I plan to.

Jun 07, 2023 11:02 AM
Leanne Smith
Dirt Road Real Estate - Golden Valley, AZ
Relocation to NW AZ with elbow room & more freedom

Interesting solution and probably not covered in any pre-licensing course.

Jun 07, 2023 10:37 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Leanne Smith Your comment had me going through my pre-licensing books from 2005 and I didn't find any mention of Affidavits of Heirship.

Jun 07, 2023 11:03 AM
Leanne Smith

Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417 not surprised as our per-licesning book never discussed mini-probates that can happen here in AZ with help of Title.

Jun 07, 2023 11:06 AM
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

Lorrie, valuable information to those families wondering what to do next when an family member passes away.

Jun 07, 2023 10:46 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Joan Cox The heir would be the person who inherits the property subject to a will. If the heir dies, the heir's will would determine ownership.

Jun 07, 2023 11:05 AM
Kathy Streib
Cypress, TX
Home Stager/Redesign

Hi Lorrie- this should prompt many to get their affairs in order...no matter how young you are!!!


                            You've been featured in the Group Bananatude.

Jun 07, 2023 12:09 PM
Anna "Banana" Kruchten
HomeSmart Real Estate - Phoenix, AZ

Excellent info Lorrie. It's so important for folks to 'put their affairs in order' early on and not leave it to the court to decide.  Every state handles this different - but somewhat the same- I would imagine. I just talked to a gal that her Mom didn't have a will or trust and she dealing with the problems and issues now that have come up within the family.

Jun 07, 2023 02:17 PM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Anna Banana Kruchten Phoenix Broker It's never too soon to make these plans for what happens after we're gone.

Jun 07, 2023 04:59 PM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

Hi Lorrie:

Great education for those without a will to better understand the value of having one. This sounds like a pretty complicated and time-consuming process if there is no will or it's not been through probate.


Jun 08, 2023 09:57 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Jeff Dowler, CRS It can be quite simple if there was only one marriage and no kids, or one marriage with no kids from outside that marriage. Otherwise, it gets complicated.


Jun 09, 2023 07:08 AM
Kathy Streib
Cypress, TX
Home Stager/Redesign

Jun 10, 2023 08:41 PM
Thomas J. Nelson, REALTOR ® e-Pro CRS RCS-D Vets
Big Block Realty 858.232.8722 - La Jolla, CA
CEO of Vision Drive Realty - Coastal San Diego

Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417 living in CA we too are a community property state and having sold both Probate and Trust properties, I can see the similarities in the the complexities of passing away without a proper will & trust. You did a great job explaining the Texas process, well done.

Jun 11, 2023 06:53 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Thomas J. Nelson, REALTOR ® e-Pro CRS RCS-D Vets Thanks! Coming from an estate sale manager background, I have a leg up on other agents who don't deal with estates and probate as often.

Jun 11, 2023 07:28 AM
Dorie Dillard Austin TX
Coldwell Banker Realty ~ 512.750.6899 - Austin, TX
NW Austin ~ Canyon Creek and Spicewood/Balcones

Good morning Lorrie,

I'm so glad that Kathy Streib featured you post in her Sunday series as I missed it! What a valuable post for so many to read. In Texas (or anywhere else) you don't want to die without a will. Take the time to take care of this very important issue. Even if you just got married make a will..it can be updated as life moves down the road. My next door neighbor years ago was a young couple who just got married. They were adorable and one day he was killed in a car wreck before they had time to think about these financial concerns. He died without a will. Thank goodness I had a good attorney to recommend and she sorting things out as quickly as could be.

Jun 11, 2023 06:57 AM
Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417

Like a good neighbor, Dorie Dillard Austin TX is there! Glad she had your help.

Jun 11, 2023 07:29 AM
Ed (Edward) Silva, 203-206-0754
Mapleridge Realty, CT 203-206-0754 - Waterbury, CT
Central CT Real Estate Broker Serving all equally

Good information here and it is a consideration for people when establishing home ownership. 

Jun 11, 2023 02:00 PM
Lise Howe
Keller Williams Capital Properties - Washington, DC
Assoc. Broker in DC, MD, VA and attorney in DC

This is very helpful for Texas practitioners and interesting for the rest of us

Jun 13, 2023 12:42 PM