A Method For Avoiding Probate

After drafting a plan with your attorney or dealing with a loved one’s estate after passing away, you will appreciate the importance of titling assets. When a person passes away having only completed a will (or nothing at all), their assets will be subject to probate. Previous blogs explained the probate process when you pass away with and without a will. Though we are not here to discuss the probate process, one function of probate is to distribute the assets to the designated beneficiary or heir. This often results in some type of retitling of assets.

When some people pass away, their only significant asset is their home. They may have little to no debt outside of their mortgage. The probate process may not be necessary for these situations when there isn’t a Will. This can be achieved with an affidavit of heirship.

How an Affidavit of Heirship Works

An affidavit of heirship is an out-of-court process that can effectively transfer real property. They are not universally applicable to all people, assets, and situations, but they can be effective for people who have passed away with little to no debt (other than in real estate) and don’t have a will. People use an affidavit of heirship to identify the deceased’s person’s heirs. 

You can have an attorney draft the affidavit for you, and title companies often prepare them when a property is being sold, or you can try to tackle it yourself.  Most or all of the heirs, along with two disinterested witnesses, will sign it in the presence of a notary. The witnesses should be people familiar with the family and will not stand to gain from the estate. It then gets recorded in the county where the property is located—not necessarily where the person passed away or where any descendants live. 

Although the law states it can be challenged for five years, title companies use Affidavits of Heirship commonly when a house is sold. There is some risk of a challenge when used for a transfer within five years, and the way that is typically addressed is by having all the heirs at law sign the document—since the heirs at law are the people who could challenge that provides some certainty. Who is responsible for the home during that time? The heir or heirs that will own the property.  Even with the five-year window, under the law, the heirs become owners on the day of death.

Lastly, an affidavit does not conclusively establish who the heirs are, and it can be challenged. However, when done correctly, it can provide a clear chain of title. That means the other person not only legally owns the property, but it also allows them to convey (sell) it to someone else. 

Speak to an Attorney about Legal Issues Involving Probate

Probate allows someone’s property to be passed down to the appropriate people, heirs, or beneficiaries. As you have learned today, that may also be accomplished with an affidavit of heirship. Regardless of the probate situation you face, it is paramount that you have an attorney to help you resolve your estate in a cost-efficient manner. Contact The Law Offices of Debbie J. Cunningham to schedule your consultation. 

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Law Offices of Debbie J. Cunningham

Debbie Cunningham is an Irving attorney providing affordable estate planning to the Dallas/ Fort-Worth areas. She understands the steps you should take to protect yourself and your loved ones. Debbie is family-focused and wants to ensure her clients are fully informed on the options that are available for their families. Debbie’s own blended family has given her valuable insights into the complexities of family dynamics.

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