Unlocking Property Sales: Affidavit of Heirship vs Probate

Navigating the intricacies of property inheritance and sales can be complex, especially when dealing with legal processes such as probate and affidavit of heirship. In this blog post, we’ll demystify the differences between these two options, helping you understand the qualifications for each and guiding you toward the best choice for your situation. Please note that while we provide valuable insights, we’re not legal experts, and we encourage you to consult with attorneys for personalized guidance. Based in Texas, we’ll focus on explaining these processes within the context of the Lone Star State. Our intent with this video is to jumpstart what path you may need to take to sell the house you have inherited.

Unlocking Property Sales: Probate vs Affidavit of Heirship in Texas

Key Points In This Article:

  • Probate is required when a deceased leaves a will or there is a disagreement amongst the family as to who will get what.
  • Affidavit of heirship is a cheaper and faster option if there is no will by the deceased, the beneficiaries are in agreement and you have witnesses that qualify.
  • Title companies we work with have some forms to fill out to see if you qualify for the affidavit then an attorney can help you draft up the actual document and walk you through that process if you do.

Probate: What You Need to Know

Probate is a legal procedure that unfolds after an individual passes away, serving to authenticate their will (if one exists) and manage the distribution of their assets. The probate process in Texas will cost more than the Affidavit of Heirship but there are a few scenarios that may require you to go through probate. If the deceased family member owned real estate and had a will prior to their passing away you will need to go through the probate process in order to execute that will. The exception to this might be if the property is in a Trust. The good news is that at least the probate process is faster if you do have a will in place. The other scenario that might require you to go through the probate process is if your family has a disagreement on who is entitled to a share of the inheritance or if one or more family members do not want to sell a house while the others do wish to sell the house. The court will hear all sides of the case and distribute the inheritance to the beneficiaries per the will and per the laws in Texas. Throughout probate, the court oversees critical tasks such as validating the will’s legitimacy, resolving any disputes related to property rights, ensuring debts are settled, and distributing remaining assets. Here’s an overview of the probate process:

  1. Submitting the Will for Validation: The court will verify that the Will is valid and can be upheld in the court process. It is not necessary to have a will to go through the probate process but it will make the process faster as it will guide most of the courts decisions and it leaves less room for dissagreement.
  2. Appointing an Executor: If you have a will the Executor is often named in the Will. If you don’t have a will the court will appoint an executor. The executor will be responsible for performing a lot of the administrative tasks in the probate process, such as any tasks assigned in the court proceedings or inventory tracking.
  3. Identifying Assets and Debts (Inventory): The court will work with the family to identify what are the assets, such as bank accounts, houses etc. and what are the liabilities, such as mortgage or outstanding credit cards in the name of the deceased.
  4. Settling Debts and Taxes: The court will assign tasks to be completed that ensure the taxes owed and the debts owed are paid off prior to distributing the inheritance.
  5. Asset Distribution: The Court will then work on distributing the remaining assets per the wishes in the Will or the laws in Texas.
  6. Court Approval: Once the Assets have been distributed the court will issue a final approval which will give you the paperwork needed to sell a house and define how the proceeds are to be distributed.

The length of probate can range from months to a year, contingent on factors like asset complexity and beneficiary disagreements.

Affidavit of Heirship a Simplified Alternative

An Affidavit of Heirship is a legal document used to establish the identity of a deceased person’s heirs and their entitlement to the deceased person’s property. This route is typically chosen when certain conditions are met:

  1. No Will: The deceased did not leave a Will outlining how their property is to be distributed upon death.
  2. Estate Complexity is Low: The deceased did not have a large number or complex structure to the assets and debts in their name.
  3. Beneficiary Agreement is Unanimous: All of the heirs agree on the even split as the laws in Texas outline and all members of the family agree to sell the property. If this is not the case your family will need to go through the probate process.

The Affidavit of Heirship will include information such as, the identification of the deceased person, identification of the heirs, property description, ownership claims and it will need to have two signatures of witnesses. These two witnesses will need to have known the deceased and the family for over 10 years. The witnesses can not be an heir and they cannot receive any portion or benefit from the estate.

When we get calls about Affidavit of Heirship we often will put our clients in touch with a Title company that will send the family a questionnaire to be completed. This form will be used by an attorney to write up the affidavit of heirship. The process can usually be done within a couple of weeks. It also requires a lot less legal support so it is a much cheaper route to go through.

Real-Life Example of an Affidavit of Heirship

Consider this scenario: The parents of three children have passed away, leaving no will. They owned a property that had a small loan balance on it, a vehicle that was paid off and a bank account. One of the children had already passed away prior to the last parent passing away. The child that had passed away had two children of their own. This family reached out to us and we got them in touch with our local title company that gave them a questionnaire to fill out to evaluate if the Affidavit of Heirship would be a good option for them. Once the form was reviewed and explained to the family they all agreed this was a good option for them and they all wanted to sell the house and car. The Attorney drafted the legal Affidavit of Heirship that split the property into three even parts. Two thirds were received by the two remaining heirs and one third was divided between the two children of the deceased heir. They found two witnesses that knew the deceased parents and the family for over 10 years and they all signed the Affidavit of Heirship in the presence of a Notary. This document was then used by the title company when they sold the house to us.

J&A Home Buyers is a cash home buyer but we also have licensed real estate agents on our team. If your family is looking for help in selling a house fill out the form below or call us today. We have written down a lot of the frequently asked questions we get about the probate process but we are happy to walk you through any questions you might have. If you need legal advice or help with Title we can put you in touch with other companies that are fit to help you with your questions. We aim to serve the Greater Houston, Texas area and we are based in Katy, TX.

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