Guide
Affidavit of heirship
What the document does, and why the answer depends on the state.
General information only. This guide explains common practice in plain terms. It is not legal advice, and practice varies by state, county and attorney. Ask the examining attorney how they want something done.
What it is
An affidavit of heirship is a sworn statement about a person who has died: who they were married to, who their children were, and who their heirs are. It is signed in front of a notary and recorded in the county where the land is. It is a common way to put family facts into the public record when no probate was ever filed.
Who signs
The person who signs, called the affiant, should know the family history first-hand. Many attorneys prefer someone who is not themselves an heir. The affidavit should say how the affiant knew the family.
What it does
It records facts. It does not transfer title and it is not a court order. Whether a title examiner will rely on it depends on the state and on how long it has been of record. Two examples:
- Texas. Under Texas Estates Code section 203.001, a recorded statement of facts about family history and heirs can be received as prima facie evidence once it has been of record for five years or more in the deed records of the right county. The statute says an error can be disproved, and that the affidavit does not affect the rights of an omitted heir or creditor. The code also gives a form of affidavit in section 203.002.
- Colorado. Under C.R.S. 38-35-113, statements about death, intestacy, heirship and identity in an affidavit that has remained of record for twenty years in the county clerk and recorder's office are accepted as prima facie evidence of the facts, as far as they affect title to real property.
Other states have their own rules, including different waiting periods or none. Ask the examining attorney what the law of the state requires.
When it is not enough
- A dispute among family members, or any chance of an unknown heir.
- A decedent with debts, or one who left a will.
- When the examining attorney wants a court decision before approving title.
In those cases the usual path is a probate or a court heirship proceeding.
Where we come in
We find the death certificate, the probate index entries and any earlier affidavits, and organize them for the attorney. If the attorney decides an affidavit is the right fix, we can prepare a draft from the attorney's form for review, then handle signatures and recording. We do not decide who the heirs are. See curative.
Sources
- Texas Estates Code, Chapter 203, Nonjudicial Evidence of Heirship
- C.R.S. 38-35-113, Affidavits referring to death, intestacy, heirship (Justia copy of the 2022 statutes)
Heirship across state lines
Heirship problems often cross counties and states, because families move. Our network of landmen helps us find the death certificate, probate index entry and earlier affidavits wherever they are kept, and our tools make the records easy to search once we have them.
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Missing probate or heirship?
Send the name, the county and the tract. We will find what is of record, organize it for your attorney and quote the curative work. Write to [email protected].