An affidavit of heirship is a sworn statement of a deceased person's family history, recorded in the county deed records, that identifies who inherited under Texas law when there was no will. It is the workhorse document for passing land and oil and gas interests without a court case, and operators and title examiners rely on it every day. But it is evidence, not a judgment: it gives no one authority to act for the estate, it does not bind an heir who was left out, and some buyers and operators will insist on a court determination instead.
What families should know
When a parent dies without a will and leaves a house, acreage or royalty interests, someone has to establish who now owns that property before it can be sold, leased or paid on. Texas offers two routes: a court proceeding called a determination of heirship, or a recorded affidavit of heirship. The affidavit is faster and far less expensive, and in a great many cases it is all that is needed.
The affidavit lays out the family tree: the decedent's marriages and divorces, every child (including adopted children, children born outside marriage and children who died first), and, if there were no descendants, the parents and siblings. From those facts the heirs are determined under the intestacy rules in Chapter 201 of the Estates Code. It is signed under oath, typically by two people who knew the family well and do not inherit, and recorded where the property is located.
Its value depends entirely on the accuracy of the facts in it. An omitted child, an undisclosed prior marriage or a vague property description is the most common reason an operator rejects an affidavit, and the most common reason a title problem surfaces years later.
The legal detail
Its evidentiary effect
Chapter 203 of the Estates Code governs nonjudicial evidence of heirship. A court must receive a statement of facts about a decedent's family history, genealogy, marital status or heirs as prima facie evidence of those facts, in a heirship proceeding or a suit involving title, if the statement is in a properly sworn or acknowledged instrument that has been of record for five years or more in the deed records of the county where the property is located or where the decedent was domiciled (Tex. Est. Code § 203.001(a)). Before five years have run, the affidavit is not statutory prima facie evidence, although operators and title insurers routinely rely on it in practice.
Two limits are built into the statute. Anyone with an interest in the proceeding may prove that the facts stated are wrong (§ 203.001(b)), and the affidavit does not affect the rights of an omitted heir or of the decedent's creditors (§ 203.001(d)). It is a tool for proving facts, not for extinguishing claims.
The statutory form
Section 203.002 provides a form that the affidavit "may" follow. It calls for the affiant's personal familiarity with the family and the period during which the affiant knew the decedent; the date, place and residence at death; the marital history; each child, with birth date, other parent and current address, or date of death and descendants; a statement that no other children were born, adopted or raised in the home; parents and siblings when there are no descendants; whether there was a will or an administration; unpaid debts and taxes; and the real property owned. The statute does not itself require two affiants or disinterested affiants. That is a title-industry standard, and a sound one.
Applying the intestacy rules correctly
The affidavit states facts; the law determines the shares. Whether property is community or separate, whether the surviving spouse is the parent of all of the decedent's children, and whether a child predeceased leaving descendants all change the result under Chapter 201. Mineral and royalty interests are real property, so for separate property a surviving spouse with descendants takes only a life estate in one-third, with the remainder to the descendants (§ 201.002(b)). Operators frequently need that analysis set out explicitly before they will issue division orders.
Record the affidavit in every county where the deceased owned property, including counties with mineral interests, and send copies to each operator.
What it cannot do
It appoints no personal representative and confers no authority to sign for the estate, collect accounts or deal with creditors.
It is not a judgment. A title insurer or purchaser may require a determination of heirship, particularly with a complicated family, missing heirs or a substantial sale.
It cannot override a will. If a will exists, it generally must be probated.
Multi-generation chains
Mineral interests often pass through several deaths without any probate. Each death requires its own heirship analysis, proved in sequence, with the shares of each later decedent traced forward. We typically build and verify the complete family tree before any affidavit is drafted, so that every line of descent is accounted for and the affidavits can be recorded in the correct order in every county where the interests lie.
| Affidavit of heirship | Determination of heirship | |
|---|---|---|
| What it is | Sworn statement of family history recorded in the deed records | Court judgment declaring the heirs and their shares |
| Court involvement | None | Application, attorney ad litem and evidentiary hearing |
| Legal effect | Prima facie evidence after five years of record (§ 203.001) | Binding judgment |
| Typical use | Royalty transfers and straightforward families | Complex or disputed families, missing heirs, or when a title company or operator requires an order |
An example
Henry died without a will, owning an inherited royalty interest in Karnes County. He was survived by his second wife and two children from his first marriage, and the operator suspended payment on learning of his death. Because the royalty was Henry's separate property, his wife took a life estate in one-third of it and his two children took the remainder and the other two-thirds. A neighbor of thirty years and a family friend, neither of whom inherited, signed an affidavit setting out both marriages and both children. It was recorded in Karnes County and in the county of Henry's residence, sent to the operator with the heirs' W-9s, and the suspended royalties were released under new division orders.
Common mistakes
Omitting a child from a prior relationship, or a predeceased child's descendants.
Using an affiant who inherits from the estate.
Recording in only one county when interests lie in several.
Describing the property too loosely for a title examiner to match it to the record.
Using an affidavit when a will exists and should be probated.
Frequently asked questions
Who should sign an affidavit of heirship?
The statute requires only that the affiant have personal knowledge of the family and marital history and swear to the facts before a notary (Tex. Est. Code §§ 203.001, 203.002). In practice, title examiners and operators expect two disinterested affiants who knew the decedent well, because an heir's sworn statement about who inherits carries obvious weight problems.
Is an affidavit of heirship filed with a court?
No. It is recorded in the deed records of each county where the decedent owned real property, and ideally also in the county where the decedent lived. No judge reviews it.
Will an oil company accept an affidavit of heirship?
Often, particularly for smaller interests where the family history is simple. Each operator sets its own requirements, and some require a judicial determination of heirship or a probated will before releasing suspended funds.
Can an affidavit of heirship be used when there is a will?
Not as a substitute for probate. An affidavit cannot change the disposition a will makes, and a will generally must be probated to be effective to pass title.
Does an affidavit cut off an heir who was left out?
No. The statute expressly preserves the rights of an omitted heir and of the decedent's creditors (§ 203.001(d)).
Probate across Texas, often by Zoom
We are based in San Antonio and handle uncontested probate and heirship cases in counties across Texas. In many of the state's largest counties, uncontested hearings can be held by video, so the executor and witnesses usually do not need to travel. See how it works in your county:
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We guide families through probate and heirship in counties across Texas, from Houston, Dallas and San Antonio to Austin and the oil-producing counties of West and South Texas, usually without anyone needing to travel. Your first consultation is free.
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About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
