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.
The 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!
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