San Antonio Express-News
February 18, 2003

Is Affidavit of Heirship Needed?

copyright 2003, Paul Premack

Let’s look at several of the statements you make to see what they mean from a legal perspective. First, "all of their assets were jointly held." In Texas, joint ownership – even community property ownership – is a legal arrangement that includes shared use and enjoyment of an asset. Both parties have access to the asset (like a home or a bank account). Both parties own an interest in the item.

The legal concept of ownership includes the right to dispose of that interest. Thus, a person can usually give or Will that interest to anyone. But just because your father-in-law had an interest in a house, for instance, does not legally mean your mother-in-law automatically owns the whole house upon his death (unless special pre-arrangements were made). He may have Willed his interest to someone else.

Second, you say his "Will stated all assets would pass to his wife." True, but no one knows that if they have not seen his Will. His instructions are unknown to the general public. Even when it is brought forward, someone might question whether his "Will" is authentic. That is where probate comes in. The Will is filed in the public records. A court rules that the Will is valid. She becomes legal owner of his assets.

Probate must be done in a timely manner. He died in August, 2000. There is a general four-year statute of limitations to bring a Will before the judge, counting from the date of death. Only one courtroom process, called "muniment of title," can work beyond that time limit for persons who were unaware of the law or unaware of the need to probate.

Third, you ask "Does she still have to file an affidavit of heirship?" An affidavit of heirship is sometimes used instead of probate when a person dies without a Will, or when all heirs agree to not probate the Will. In that situation, Texas law gives the surviving spouse all community and separate assets – so long as all the deceased person’s children are also the children of the surviving spouse. An affidavit of heirship provides evidence of family history, so outsiders can apply the law to the facts to conclude who legally inherited the property. Most title companies will accept an affidavit when all the facts are simple and clear.

These two processes, probate and affidavit of heirship, may sound a bit complex. But one or the other is legally necessary to clear title to any real property owned by the deceased person.

The only other alternatives must be in place before the date of death. Use of a living trust, which has its own set of complications, usually avoids probate. Use of a community property survivorship agreement also avoids probate. It supplements the legal concept of joint ownership with the legal concept of survivorship, so that when one owner dies the survivor becomes 100% owner automatically. For more on these alternatives, visit my website at www.Premack.com.