SMITH & GARG, LLC

By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, Missouri City. Sugarland, Richmond, Alief and other surrounding areas in North, Northwest, South and Southwest Houston.

An "heirship proceeding," or "proceeding to declare heirship," is the probate procedure most commonly used when a person dies without leaving a valid will. Its primary purpose is to determine two things: (1) the identity of the heirs of the decedent, and (2) the percentage of the decedent's estate that each of such heirs is entitled to take.

While most commonly used when a person dies intestate (that is, without leaving a will), the heirship proceeding is also used in other circumstances. If, for example, a decedent left a valid will, but did not dispose of all of his or her property, an heirship proceeding will often be used to determine the legal owners of those remaining assets not given away in the will. 

When this procedure is necessary, an heir of the person who has passed away may, through the help of the attorneys at Smith & Garg, initiate the heirship proceeding by filing an application with the probate court. All other heirs of the decedent have to be notified of the proceeding, and the court will appoint an attorney "ad litem" to represent all unknown and unlocated heirs. A hearing in the probate court will be required, during which the heir and witnesses will give testimony. Following the hearing, the court's judgment will declare the name and address of each heir, and the percentage of the deceased's estate that each heir will take.

Having a sound estate plan in place to take care of your property is the best way to help your loved ones avoid the hassle and expense of an heirship proceeding. But if and when the need arises, the attorneys at Smith & Garg are here to help you navigate through this and a variety of other facets of probate.

Affidavit of Heirship

An affidavit of heirship is an ancillary, or alternative, probate procedure often used when an individual dies leaving an estate consisting only of real property. The affidavit of heirship is a statement of facts regarding the deceased person’s family history, genealogy, marital status, and identity of his or her heirs. It is used to identify who inherits title to a decedent’s real estate, so that those heirs may take title to or sell the property. Thus its primary purpose is to allow the heirs of the decedent to quickly transfer an insured title from a deceased person’s estate consisting primarily of a homestead without resorting to further judicial proceedings.

The affidavit is generally made, executed and sworn to by a family member of the deceased person. It must be executed by an individual with personal knowledge of the facts stated; that is, with personal knowledge of the decedent’s family history and identity of his or her heirs.

An affidavit of heirship, after being signed and notarized, should be filed with the real property records in the county where the decedent’s property is located. Generally, an affidavit of heirship must be on file in the real property records for five years in order for a title company to rely on it. However, very often title companies will proceed with changing title to real estate if the affidavit has been on file for less than the five-year requirement.

If you or your family have a need for transferring title to real estate with or without a formal probate proceeding , the experienced attorneys at Smith & Garg will prepare an affidavit of heirship for you and explain its use in a probate procedure that will work best for your needs. 

We invite you to contact us for a consultation. Call Smith & Garg, LLC at 1-877-517-4275 or complete our contact form.