Affidavit of Heirship Defined
An affidavit of heirship is a sworn statement that identifies the heirs of a deceased person. Most often, these are used by a surviving spouse in the administration of an estate to identify the person’s heirs. In Texas, a standard form, referred to as Texas Affidavit of Heirship Form 53-111-A, must be filed with the court. The form is signed by either the spouse or another heir, but it is strongly recommended that the form be signed by everyone claiming a share of the estate .
While other states have similar types of forms, Texas is unique in that, under most circumstances, these forms are admissible in court without the necessity of an accompanying affidavit from a disinterested witness.
While affidavits of heirship are underutilized in administering estates in Texas, heirs often have significant difficulty collecting property if an estate was never filed. When all of the heirs agree, a signed affidavit is an easy way to identify and ratify the identities of heirs.
Form 53-111-A in a Nutshell
Amongst the Texas Affidavit of Heirship forms that are available on the internet, there is a form 53-111-A that was created by the Secretary of State of the State of Texas. Although there are many online versions of this form, all of them seem to reference Secretary of State 53-111-A, which is an indication that this form was designed by the Texas Secretary of State.
Texas Form 53-111-A is used to facilitate the affidavit of heirship process by providing a format for the information to be collected for the affidavit. This form specifically asks for names and addresses of all claimants, meaning people who claim some ownership right in the property being identified. In particular, it asks if there is a will and if so, it asks for its location. There is a large section for information about all real estate known. It covers land, buildings, improvements and fixtures, and does so for multiple properties, plus it asks if there are any leases, mortgages or vendor liens. For personal property, the form tries to collect all property owned, such as livestock, vehicles, and anything of value.
The last two pages are very important for the affidavit of heirship use as they give multiple places for signatures of witnesses. Although not required in the statute or other state rules, these witness signature pages will allow others to testify in court as necessary about the affidavit itself, increasing its value.
This form, like all others, is good for use by non-lawyers to gather information, but may have to be slightly changed to fit within other local requirements or the requirements of a bank or title company.
Completing the Form 53-111-A
The Texas Affidavit of Heirship Form 53-111-A is to be completed by the affiant if there is not a deed to transfer title, nor a probated Will, and an Affidavit of Heirship has to be filed in the real property transaction itself. Strict compliance is required in the completion of the Texas Affidavit of Heirship Form 53-111-A. The following information must be included in the form:
- Location of the Real Property(Affirmative Statement)
- Legal Description of the Real Property.
- Full Name & Address of Each Heir. If married, include married name. Use full names as shown in the Title Policy Schedule A (i.e. Mary Anne Jones)
- Each Heir’s relationship to the Decedent(s).
- Each Heir’s current mailing address.
- Maiden Name- for all women who were married at the time of death of the decedent. Should include the full names of all children born to the decedent while married.
- Date of Death of Decedent. In the case of a Married Couple, list the date of death of each decedent.
- Place of Death of Decedent (e.g. County, Texas or city, county, and state).
- Affiant’s name, address, and phone number(to establish personal knowledge of the affiant).
The affiant may also benefit from having wills, deeds, and any prior affidavits of heirship because these documents will help the affiant complete the form completely and accurately.
Common Pitfalls and How to Prevent Them
One of the most frequent mistakes people make when completing Form 53-111-A is not fully understanding the instructions on the first page of the form. When filling out the decedent information, some people do not fully understand where they should enter the decedent’s information. For example, sometimes people fill out the name section for the spouse instead of the decedent. You must be cautious when completing this section; verifying that you lay out the spouse and decedent information separately. Any error can cause an issue depending on how the property is held and whether or not a probate estate is opened.
You may think there is no harm in answering the questions about all heirs of the decedent, but this is a mistake. When filling out this section of the form, be careful to only answer the questions that apply to you. If you fill out all sections related to yourself and your siblings, the person/people who don’t have rights to the property will likely see it and sue you. This could be avoided by simply answering the questions that apply to you.
Another common mistake is not being aware that the affidavit is not self-proving. Meaning , anyone who wishes to use the affidavit to establish heirship or intent may do so in the future. In other words, someone else could see the affidavit and try to get a probate court to accept it as evidence. Form 53-111-A contains a lot of information about the decedent’s estate that a future beneficiary may take issue with. Some people believe that because the affidavit is a government form and was filled out by the county clerk’s office, the declaration is automatically binding on a probate court in the future. This is not true. It is up to a probate court to determine whether or not the affidavit is admissible; a court is not obligated to accept it as evidence. Often, a court will weigh the reliability of the affidavit along with the credibility of the affiant. If a future beneficiary wants to contest the declaration, they must bring a lawsuit within the time limits mentioned in the section on applicability of this affidavit and what the affidavit is used for.
Legality of Affidavit of Heirship
There is also legal significance to the filing of the affidavit, itself. Both Texas law and estate planning best practices provide that an affidavit should not be sufficient by itself to pass title in the absence of an existing will. That is to say, anyone claiming a right to possess property without a will should not rely solely on an affidavit of heirship.
However, like Texas Title Company did recently, a title company may accept the affidavit of heir‐ ship and information contained therein to issue a "Title Insurance Policy". The title company, in effect, agrees to underwrite a title "policy" insuring that title is clear as to all issues disclosed in the affidavit of heir‐ ship and any additional information available from the executors or heirs. While this practice is not strictly required by law, drafters of affidavits of heirship should be aware of this. The best practice remains to have an affidavit of heirship prepared for each person who died intestate, even where a will is in the process of probate. If inaccurate information is listed on an affidavit of heirship, the consequences can be devastating. For example, the heirs listed on the affidavit may be personally liable for any losses, up to the value of the estate. As one Texas case put it: "The personal liability of a de‐ fendant in a suit for an alleged debt of a decedent is statutory and arises solely from the provisions of Section 329 (now called Section 257.003) of the Probate Code." Because the executor was not a party to the lawsuit, he was not held personally liable.
Consulting an Attorney
It’s not always appropriate to file an affidavit of heirship to transfer real property upon a person’s death. The Affidavit of Heirship Form 53-111-A is meant for use by heirs to a small estate. If an estate is complex and/or its assets are in dispute, then it is a good idea to consult a qualified attorney.
You might want to seek legal advice if:
• the decedent had a complex financial portfolio, such as a sizeable business interest or real estate holdings;
• the decedent requests in writing that a lawsuit to determine heirship or to partition the real property after his or her death be an independent action not requiring heirs to be joined;
• the decedent did not have a will;
• the decedent owned real property and had more than one heir;
• the estate is about to become insolvent; or
• the decedent had debts of $75 , 000 or more for construction, repair or improvement of any housing unit or real property.
Even if these conditions do not apply, it may still be best to involve a lawyer if there are any outstanding issues with the estate. For example, let’s say your father passed away and you individually pay the bills for his funeral expenses. However, your brother has refused to help pay for the family funeral. Since you and your father have the same last name, the father’s estate should be divided evenly between you and your sibling. Because the estate is subject to division, your brother may attempt to contest the Affidavit of Heirship.