Affidavit &
determination of
heirship in Texas

Both answer the same question. They differ in cost, in speed, and in how much weight the answer carries.

An affidavit is cheap and fast and depends on someone accepting it — usually a title company. A judgment is more expensive and slower and is accepted by everyone, because a Texas district or statutory probate court has decided the question after appointing a lawyer to represent the people who weren’t there.

How we usually approach it. If the family history is simple and undisputed and the title company will take an affidavit, that is the efficient answer. The moment there is a missing sibling, a child from a prior relationship, a minor, a valuable mineral interest, or a title company that says no, the judicial route is the one that actually finishes the job.

The affidavit sets out the decedent’s family history in detail: every marriage and its end, every child including children from prior relationships and any adopted or deceased children, the death of the decedent, and whether any will exists. It is signed by the affiants before a notary and recorded in the real property records of each county where the decedent owned land.

Who signs it

Two disinterested witnesses — people who knew the decedent and the family well but take nothing from the estate. Longtime neighbors, family friends, church members, in-laws. An heir cannot serve as a disinterested witness, though heirs typically sign as well in a separate capacity.

The five-year rule

Texas Estates Code § 203.001

A recorded statement of facts concerning family history, genealogy, marital status, or the identity of a decedent’s heirs is prima facie evidence of the facts stated, where the statement has been of record for five years or more in the deed records of a county in this state and the court has not found the statement to be incorrect.

Before five years, the affidavit is still valuable — it puts the family history on record while the witnesses are alive and their memories are good, and title companies frequently accept it on their own underwriting judgment. After five years, it carries statutory evidentiary weight.

An affidavit does not bind anyone. It is evidence, not a judgment. An heir who was left out, or who disagrees with what it says, can contest the facts later. That risk is exactly what a judicial determination eliminates.

Filed under Estates Code Chapter 202 in the county where the decedent was domiciled or where the real property is located. The court determines who the heirs are and the share each takes, and enters a judgment saying so.

What the proceeding involves

• An application setting out the decedent’s family history in the detail the statute requires.
• Citation to known heirs and by publication and posting to unknown heirs.
• An attorney ad litem appointed by the court to represent unknown or missing heirs, and a guardian ad litem where a minor or incapacitated heir is involved. The ad litem investigates the family history independently and reports to the court.
• Testimony, generally from two disinterested witnesses with personal knowledge of the family.
• A judgment declaring the heirs and their fractional interests.

When it is required rather than optional

• Before the heirs of an intestate decedent can agree to an independent administration under § 401.003 — the statute requires that the parties be determined through an heirship proceeding first.
• When a title company will not insure on an affidavit.
• When heirs are missing, unknown, or in disagreement.
• When a minor or incapacitated person is an heir.
• When significant mineral interests are involved — operators and purchasers commonly insist on a judgment before paying royalties.

Either route lives or dies on the family history. Start gathering:

• The decedent’s death certificate, and death certificates for any predeceased children.
• Marriage licenses and divorce decrees for every marriage — including ones the family would rather not discuss. Undisclosed prior marriages and children are the most common reason heirship filings fall apart.
• Birth certificates or other proof of parentage for every child, including children born outside a marriage and adopted children.
• Deeds to any real property, and the legal descriptions.
• Names and contact information for two disinterested people who knew the family well.

Be candid with your attorney about the family. A child from a prior relationship who nobody has spoken to in thirty years is still an heir under Texas law. Discovering that fact after a judgment has been entered, or after property has been sold, is far worse than dealing with it now.