If a person dies without a will, and title to his or her property does not expressly include joint tenancy with survivorship language, then issues may arise as to which persons now have a title and in what percentages. ” It is essentially unsellable as it is, and a title company will not insure the title until heirship issues are addressed and resolved. This is usually accomplished by either a probate proceeding in county court, resulting in appointment of a personal representative of the estate and ultimately a judgment determining heirship, as provided by Estates Code Section 202; or by the less formal and expensive method of utilizing an affidavit of heirship (Est. Code §) followed by a “curative deed” or “consolidation deed” (our terms) signed by the surviving heirs in favor of a new sole owner.
Even if the decedent had a will, an affidavit of heirship ent is not self-executing as to bequests of real property. It is merely a statement of the decedent’s intent. The will must be acted upon in some manner, either by means of a formal probate proceeding (filed within four years of death) or by means of a recorded affidavit of heirship, the result of which is to declare as a matter of record the identity and interests of the heirs.
The affidavit must be signed under oath by a person familiar with facts relating to family circumstances and history, which is usually but not always a family member
If an investor is faced with probate issues, then an attorney who is a board-certified specialist in that area should generally be consulted.
Schedule C of the title commitment may state: We are to be furnished with an affidavit executed by an immediate member of online payday loans Oklahoma the family and corroborated by at least two disinterested parties containing the marital history of the deceased and his spouse and a complete list of heirs, together with an original death certificate attached.
The title company is asking here for an affidavit of heirship. The purpose of the affidavit in an intestacy case (no will) is to describe family history and circumstances and identify the likely heirs. Estates Code Section states in part:
(a) A court shall receive in a proceeding to declare heirship or a suit involving title to property a statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent as prima facie evidence of the facts contained in the statement if:
(A) an affidavit or other instrument legally executed and acknowledged or sworn to before, and certified by an officer authorized to take acknowledgments or oaths, as applicable; or
Note that this is not a chapter on probate law, although we occasionally refer to sections of the Estates Code
(2) the affidavit or instrument containing the statement has been of record for five years or more in the deed records of a county in this state in which the property is located at the time the suit involving title to the property is commenced, or in the deed records of a county in this state in which the decedent was domiciled or had a fixed place of residence at the time of the decedent’s death.
Although the statute does not expressly require that the affidavit be attested to by disinterested witnesses (i.e., persons who have no personal or financial stake in the outcome), title companies routinely require two notarized signatures of disinterested persons-three is prudent.
After execution, the affidavit should be filed in the real property records of the county where the property is located. If the property overlaps county boundaries, then a separate affidavit should be filed in each county where the property makes an appearance.