A Texas affidavit of heirship is a sworn statement that sets out the family and marriage history of someone who died without a will (intestate) and names their heirs. It's usually signed by someone who knew the family, and it isn't a court order. You record it in the county deed records, most often to show who inherited real estate. Once it has been on record for five years or more in the right county, Texas courts must accept it as prima facie evidence of heirship, meaning it stands as proof unless someone shows otherwise (Tex. Est. Code § 203.001). The Estates Code gives a model form in § 203.002.
When families use one
An affidavit of heirship usually comes up in one of three situations after someone dies with no will:
- Real estate, when the family wants to show who inherited without opening a court case.
- A car, using the Texas DMV's Form VTR-262, Affidavit of Heirship for a Motor Vehicle.
- Unclaimed property held by the state, using the Comptroller's Form 53-111-A. It has to be filed with the county clerk in the county where the person lived, and a file-stamped copy uploaded to ClaimItTexas.gov.
What the affidavit has to say
The model form in Tex. Est. Code § 203.002 covers these points:
- The affiant's name and address, and how they know the family. (The affiant is the person signing.)
- How long they knew the person who died (the decedent), the date and place of death, and the last residence.
- The decedent's marital history.
- Each child: name, birth date, other parent, and address, or date of death and descendants.
- A statement that there are no other children, including adopted or raised children, except those listed.
- If there are no descendants: the parents and, where needed, the siblings.
- Whether the decedent left a written will, and whether there has been any administration of the estate (a probate case).
- Unpaid debts and unpaid estate or inheritance taxes, if any.
- Real property the decedent owned an interest in.
- Optionally, the names of the heirs.
It's signed before a notarial officer, such as a notary. The Comptroller's version (Form 53-111-A) asks the witness to confirm they aren't the claimant and won't benefit from the estate.
How much weight it carries
An affidavit of heirship is evidence, not a ruling. It becomes prima facie evidence in court only after it has been of record for five years in the deed records of the county where the property is, or where the decedent lived (§ 203.001(a)). Anyone with an interest can prove the true facts if the affidavit gets something wrong (§ 203.001(b)), and it doesn't affect the rights of an heir it leaves out or of the decedent's creditors (§ 203.001(d)).
If you need a firm answer now, for example to sell land quickly, a court can decide who the heirs are in a proceeding to declare heirship (Tex. Est. Code ch. 202). The application is filed in a court specified by § 33.004 (§ 202.005).
Affidavit of heirship vs. small estate affidavit
The two do different jobs. One records who the heirs are; the other lets them collect assets without a full administration.
| Affidavit of heirship | Small estate affidavit | |
|---|---|---|
| What it does | Records who the heirs are | Lets heirs collect assets without appointing an administrator |
| Court involvement | None; recorded in the deed records | Filed with the clerk and approved by the judge |
| Limits | No dollar limit in ch. 203 | Estate assets, excluding homestead and exempt property, up to $75,000 (§ 205.001) |
| Waiting period | None stated in ch. 203 | 30 days after death |
See small estate affidavit limits for other states.
Where to file it
Real estate affidavits are recorded in the deed records of the county where the property is. You can also record it where the decedent lived, and the five-year rule counts either one. For a vehicle, follow the instructions on Form VTR-262. For unclaimed property, file Form 53-111-A with the county clerk of the county where the decedent lived. Find the county clerk and probate court for each Texas county in our Texas probate court list, and read the Texas probate guide for when a court case is the better route.
Getting the family history right
An heirship affidavit is only as good as the family history in it: every marriage, every child, every date. EverSettled helps you collect that history and the documents behind it, and gets you attorney-ready faster if a court proceeding turns out to be needed, which shortens the path to the inheritance. It also guides you through the rest of the admin after the death.
Frequently asked questions
Who can sign a Texas affidavit of heirship?
Someone with personal knowledge of the family and marital history signs the statutory form. The Comptroller's unclaimed-property form requires a witness who isn't the claimant and won't benefit from the estate. Title companies and others who receive the affidavit may set their own requirements, so ask them before you sign.
Does an affidavit of heirship replace probate when there's no will?
It can stand in for a court case when the only job is recording who inherited, especially real estate when there's no will and no debts to deal with. It doesn't appoint anyone to manage the estate, and it doesn't bind heirs it leaves out or creditors.
Can I use an affidavit of heirship if there is a will?
The form in § 203.002 says the decedent died without a written will, and it's meant to be modified if there was one. The Comptroller's form says that if a will was probated, you should submit the probated will instead. If there is a will, talk to a probate attorney about probating it, including as a muniment of title (probating the will only to transfer property, without appointing an executor).
Sources
- Tex. Est. Code §§ 203.001, 203.002 (ch. 203, nonjudicial evidence of heirship)
- Tex. Est. Code §§ 202.001, 202.002, 202.005 (ch. 202, proceeding to declare heirship)
- Tex. Est. Code § 205.001 (ch. 205, small estate affidavit)
- TxDMV Form VTR-262, Affidavit of Heirship for a Motor Vehicle
- Texas Comptroller Form 53-111-A, Affidavit of Heirship (unclaimed property)