This column first appeared in the San Antonio Express News on August 5, 2016.
Dear Mr. Premack: My husband and I bought a property a few years ago. He then passed away in 2011 without a Will and I am told I own only half of this property. All I have is an Affidavit of Heirship. I’ve been told that I cannot transfer the property to one of children unless I wait five years. Is this the only option available? The Affidavit of Heirship is dated in 2012. – LH
When a person dies without a Will (intestate) state law determines how that person’s assets are divided. State law does not always match what that person would have wanted, nor does it always meet the expectations of the survivors. That is why no one should remain intestate; the simple act of making a valid Will with a qualified attorney allows everyone to override state law and to pass assets per their wishes.
If all of the children are from his marriage to you, then Texas intestacy law would vest ownership of his half of the property with you alone. If any children are his from a prior marriage (or from a different mother) then his half of the property would pass to the children, not to you. You would keep the half you already own, but would have no ownership of the half that passes to his children.
You and your family are familiar with your husband’s family history, but the public in general has no information on that topic. As such, when he died intestate it was necessary to take some legal action to determine who his legal heirs should be, and to make that information public. Only when the Real Property Records at the courthouse are properly updated can you move forward to sell or gift the property.
There are three possible legal procedures in Texas. First, a court-based Determination of Heirship and Administration. This is the most accurate and binding, ending up with a court order identifying the heirs and settling the estate. It is also the most complex and expensive procedure. Second, a court-based Small Estate Affidavit. This results in a court order identifying the heirs, but cannot transfer real estate unless it is the residential homestead of the decedent. Further, the overall estate (not including the value of the homestead) must be below $50,000 in value.
Third, an Affidavit of Heirship, which you selected. This is a non-judicial sworn statement of the decedent’s family history which applies the intestacy law to identify the legal heirs. Technically it is valid as evidence in any proceeding if it has been on file in the Real Property Records for five years. Informally, title companies routinely ignore the five-year term and allow the identified heirs to transfer the property. Hence, if you want to sell this property, talk to the Attorney who drafted your Affidavit of Heirship to see if he recommends talking to a title company.
And remember: if your husband had made a Will or a Trust or anther binding plan for this property, all these loose ends would have been neatly tied. He could have simply left the property to you so you could avoid all the uncertainty and added cost. You should see a qualified attorney about making your own legally binding estate plan, and do not wait. As we’ve seen from the tragic hot-air balloon accident, the unexpected can happen to anyone.
Paul Premack is a Certified Elder Law Attorney and is author of Thinking Beyond Tomorrow: Organizing, Planning & Settling Your Estate, 8th Edition. View past legal columns or submit free questions on legal issues viawww.TexasEstateandProbate.com or www.Premack.com.