This blog is part two of What Do I Do If A Loved One Dies Without A Will. Part One discussed an Application To Determine Heirship proceeding, the more formal court proceeding to determine heirs and order transfer of property. Sometimes, we determine after a review of the assets of the deceased loved one that a more informal, less expensive “Affidavit Of Heirship” would be sufficient. It is not always certain that third parties will accept the informal “Affidavit,” but because it is so much less expensive than the formal court proceeding, it may be worth trying this first.
Like the formal Application To Determine Heirship proceeding, all of the legal heirs under Texas laws of intestate succession (who inherits if there is no will) will have to be identified. The “Affidavit Of Heirship” then must be drafted, setting out the family history of the deceased loved one to demonstrate that these are, in fact, the legal heirs. The family history should include marital history of the deceased, names and dates of birth of children, and recite the date of death of any legal heirs that predeceased him or her.
Two independent witnesses who would not benefit from any inheritance, who have a long history of knowledge of the family history, must be identified.
All of the heirs and the two independent witnesses must swear under oath, before a notary public, that the facts stated in the affidavit are true.
The “Affidavit Of Heirship” can also include a “Family Settlement Agreement,” by which all of the heirs can agree to divide the property of the estate differently than what would be required by the Texas laws of intestacy.
The Affidavit should be recorded in the official public records in every county where the deceased owned real estate.
Hopefully, third parties involved with the estate will accept the Affidavit as authority for transfer of assets as set out therein.
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