Q: Does an affidavit of heirship vest title in the heirs named in the affidavit, and is nothing further needed when an affidavit of heirship is recorded, correct?
A: No and No
An affidavit of heirship is a document used to establish the identify of person(s) who have succeeded to a deceased owner’s interest in the property when the deceased owner died without a will or the will was not probated and the laws of the State where the property is located control. An affidavit of heirship is not a cure-all, is only as good as the affiants are honest, does not vest title in the named heirs, and does not divest a person who is not named as being an heir of his/her rightful ownership interest in the property. All the heirs named in the affidavit of heirship (and any additional know or discovered heirs) are required to be part of the title insurance transaction (in other words, all the heirs must execute the documents whether those be deed, deed of trust, release of lien, easement, lease, etc.).
Specific to our FNTI licensed states:
Arizona: Title companies may record an “affidavit of heirship” on a case-by-case basis for title insuring purposes.
Florida: While it is acknowledged that the property may have passed by operation of law, an administration of the estate is necessary in order to transfer title as Florida does not utilize affidavits of heirship for title insuring purposes.
New Mexico: A case by case basis determination is made whether title companies may record an “affidavit of heirship” for title insuring purposes. Title agents should consult and discuss with counsel for FNTI issues would include but not be limited to the dollar amount of the transaction, the number and geographic location of the heirs, any history of family discord, history of the title agent communication, knowledge of, and dealings with the parties/heirs, etc.
Texas: Consideration for relying on an affidavit of heirship may be given for persons who have been deceased for at least six months. If the deceased person had a will but such has not been probated, a copy of the will must be attached to the affidavit and any conflict between those heirs identified in the affidavit and the devisees who would take under the will must be addressed and reconciled prior to closing. A preferred practice is that the form of the affidavit follow Texas Estates Code, Section 203.002, be given by two affiants which are disinterested and not benefitting monetarily from the transaction, corroborated by at least one heir, and executed with a “penalties of perjury” clause. All the heirs identified in the affidavit of heirship must be parties to the title insurance transaction. Knowledge or learning of additional heirs not identified in the affidavit of heirship would cause the affidavit to be unreliable for title insuring purposes.
Contact underwriting counsel to discuss any questions/issues pertinent to the use of an affidavit of heirship. Underwriting bulletins may be issued to supplement and set forth further requirements.
Title agents are encouraged and welcome to contact counsel for FNTI in the respective states for discussion and advice.