Dear Mr. Premack: My father was married only once, and they had five children. He died in 1994 survived by our mother and all the children, but without a Will. My sister has decided that all the land is hers and filed an affidavit of heirship to claim ownership. How could she wipe off the four other children? Should we have received some type of notification of the affidavit? I don’t know the status of the property, but want to keep what is legally mine. – RE
Affidavit of heirship is a statement of a deceased person’s family history. Technically it is called an “Affidavit of Facts Concerning Identity of Heirs” and is authorized by Sections 52 and 52A of the Texas Probate Code. It is intended to be used as evidence if there is ever a court proceeding over heirship or over title to a parcel of land.
Under the law, the Affidavit is “prima facia” evidence once it is signed by a witness before a notary and after it has been filed in the deed records of the appropriate county for a five year period. “Prima facia” means that the statements in the affidavit are considered to be true unless they are contradicted by credible evidence at some future date.
If an heir has been omitted, the affidavit does not change the legal rights of the person who was left off the affidavit. Rather, that person may present evidence to show why he/she is an heir and why the affidavit is incorrect. Title companies often accept these Affidavits at face value, and if title has been changed based on the false affidavit the proper heir(s) may have to file suit to recover their benefits.
Whenever a person dies without a Will (as did your father) the Texas law of descent and distribution must be applied to determine who inherits the property. That law must be combined with the facts of the specific situation of this unique family. The words of the law are publicly available, but few people know the extent and identity of the members of the family. The affidavit of heirship is supposed to create a public record of those facts so that when the law and the facts are combined, the result allows the true heirs to be known.
Legally, your sister did not eliminate the legal rights of the siblings who she left off the Affidavit. The witness she used may have been willing to lie, or may have been misled by her (and that witness may have committed perjury if the misrepresentation was intentional). Actual notice of the Affidavit is not required by law, but it must be filed with the county clerk which means you are presumed to know about the Affidavit.
One of the key statements in your letter is that your father was survived by his wife and all the children. Under the Texas law of descent and distribution, all of your father’s community property passed to your mother – not to the children. If the land your father owned was his separate property then your mother received a ⅓ life estate with the balance going to all the children.
You say you don’t know the actual status of your father’s property. Your first task should be to find out the property’s history by researching the deed records at the county clerk’s office. You could hire an attorney or a title company to do the research for you if you do not know how to do it yourself.
Once the facts are known, you can file a corrected Affidavit of Heirship that contradicts the one filed by your sister. The proper legal heir(s) – which may just be your mother, or may include the children depending on the facts – may need to have a judge rule on their rights. That would be done in a “proceeding to determine heirship” filed in the local court with probate jurisdiction.
Of course your father could have avoided this entire mess just by having a proper Last Will and Testament. Going to a lawyer for a valid Will is far less expensive than the heirship proceeding the family may have to endure. If your mother has not yet made her own Will, she should do so with her lawyer immediately.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, June 18, 2010