At times a question arises about heirship in probate matters. This often occurs when a will is not written clearly enough, or heirs pass away or are born after the most recent will was signed. An affidavit of heirship is one method of remedying such issues. A Texas probate attorney will work with you to ensure that the affidavit is written properly and completely.
What an Affidavit of Heirship Does
An affidavit of heirship is used by probate courts to help determine the identities of legal heirs. The affidavit is a sworn statement, and functions as prima facie evidence in court that the information it contains is factual.
Your Texas probate attorney will help you to designate the parties who will sign the affidavit. In order for the affidavit to be approved in court it must be signed by two people, neither of whom can be heirs to the estate. These individuals cannot gain financially from providing their signature; they cannot, for instance, be paid for their services. This prevents biased parties from influencing what should be based on facts, and thereby protects the integrity of the affidavit. Knowingly providing false information can result in legal penalties.
Pertinent Information to Include
While Texas statutes dealing with affidavits of heirship do not require that the form be used, it is necessary to include comprehensive answers to questions asked by the form. Among the information that must be provided are:
- Full legal name of the affiant, or applicant
- Address of residence
- Information about the applicant's relationship to the decedent, including how long they had known each other, and the marital history of the decedent. The names of all the heirs and children to the decedent must be included, along with any that have been adopted.
Important Points to Consider
Certain matters may arise that can complicate affidavits of heirship. For instance, occasionally the testator dies without leaving any surviving spouse or children. In such cases the parents to the decedent are named. If these parents are deceased, their names still must be provided. The affiant, as the applicant to the affidavit is called, must in such case include the names of other family members of the decedent, such as siblings.
Sometimes not all the heirs are known by the affiant; in this case an attorney may be named by court to act on behalf of these heirs. This individual is named the guardian ad litem. An affidavit of heirship is not allowed to interfere with unnamed creditors and heirs.