Texas Guides / Inheritance
Affidavit of heirship in Texas
Quick answer
If a parent died without a will and the land is still in their name, many Texas families use an affidavit of heirship instead of probate. It is a sworn statement, signed before a notary by someone who knew the family, and recorded in the county where the land is. It does not transfer the land by itself: it documents who the heirs are. It works best when there is no will, the family is simple and everyone agrees.
Who this guide is for
- A parent, spouse or grandparent died without a will and the house or land is still in their name.
- The family is simple: everyone knows who the children and spouse are, and nobody is fighting.
- You want to know how to get the land into your name without probate and what you will be asked for.
Not for you if…
- There is a will that can still be offered for probate (less than 4 years since the death): talk to a lawyer about probate.
- The family disagrees, some heirs can't be found, or minor children are inheriting.
- The land is outside Texas: every state has its own rules.
“The house is still in my dad's name” is one of the most common things Texas legal aid offices hear. If your relative died without a will, an affidavit of heirship is a common, low-cost way to put on record who the heirs are, without going to probate court. This guide explains what it is, who signs it, what it costs and when it won't be enough.
What an affidavit of heirship is and when it works
An affidavit is a sworn statement: a person writes down facts and swears before a notary that they are true. An affidavit of heirship tells the decedent's family story: who they were married to, how many children they had, when and where they died, and what land or house they owned.
It isn't a lawsuit, and no judge signs it. It's recorded in the county deed records next to the deed to the land. That way, anyone who checks the land's history later, such as a title company, can see who the heirs are.
According to TexasLawHelp, it is mostly used in two situations: when the person died without a will, or when they left a will that wasn't probated within 4 years of their death.
Who inherits when there's no will?
The affidavit doesn't decide who inherits. Texas law does (Estates Code chapter 201). Some common examples:
| Family situation | Who inherits the land |
|---|---|
| No spouse, with children | The children, in equal shares (grandchildren step in for a child who has died) |
| Married, community property, and all children are from that marriage | The surviving spouse |
| Married, community property, with children from another relationship | The decedent's half goes to their children; the surviving spouse keeps their own half |
| Married, land was the decedent's separate property, with children | The spouse gets a life estate in one-third; the children get the rest |
| No spouse and no children | The parents, and sometimes the siblings |
If your family doesn't fit one of these, or there was more than one marriage, that's a good reason to talk to a lawyer.
What Texas law says
The affidavit of heirship comes from the Texas Estates Code, sections 203.001 and 203.002.
- Section 203.001: if a statement about family history and heirs is sworn before a notary and has been recorded for 5 years or more in the deed records of the county where the land is (or where the decedent lived), a court must receive it as prima facie evidence. In plain terms, it's taken as true unless someone proves otherwise.
- The same section says anyone with an interest can prove the true facts if the affidavit has an error, and that the affidavit doesn't affect the rights of an omitted heir or of the decedent's creditors.
- Section 203.002: gives the statutory form, the Affidavit of Facts Concerning the Identity of Heirs, with 16 numbered items. You can use it “in substantially” that form, adjusted to your family's facts.
The Property Code adds that a document about land is recorded in the county where the land is (section 11.001), and that once recorded it is notice to everyone (section 13.002).
Witnesses for an affidavit of heirship: who signs
The statutory form is signed by one person, the affiant, who knows the family history. The statute doesn't require two witnesses. In practice, though, TexasLawHelp says to find two people who knew the decedent, and each signs their own affidavit. Many title companies expect the same.
Ideally, these people inherit nothing (they're often called disinterested witnesses). For example:
- A long-time neighbor.
- A family friend or godparent.
- Someone from church who knew the family well.
If you can't find anyone outside the family, TexasLawHelp says a relative who gets no money or land from the affidavit may sign.
Information you'll need
- The decedent's full name, date and place of death, and home address at death.
- Marriage history: who they married, any divorces, and if a spouse died, when and where.
- Each child: name, date of birth, the other parent's name and current address (or date of death and that child's own children).
- If there were no children: information about the parents and siblings.
- Whether there was a will, any probate, unpaid debts and unpaid taxes.
- The legal description of the land, exactly as it appears on the deed.
How to do it, step by step
- Gather the facts. Find the deed, the death certificate, marriage certificates and the children's birth certificates. If the decedent was born in Mexico, Mexican records help too.
- Fill out the affidavit. Work from TexasLawHelp's sample or the section 203.002 form. Copy the legal description of the land exactly as it appears on the deed.
- Sign before a notary. Each affiant signs in front of a notary public, who checks ID and applies a seal. Bring a photo ID. In Texas a notary is not a lawyer and can't tell you whether the document is right; see why a notary is not a lawyer.
- Record it with the county. Take the originals with original signatures to the county clerk's office where the land is. Travis County, for example, won't record a copy. Ask whether you can record both affidavits as one document, since that can cost less.
- Tell the appraisal district. Contact the county appraisal district (CAD) to update the owner name and the address where tax bills go. If you live in the inherited home, ask about the heir homestead exemption: see the heir homestead exemption guide.
- Keep the recorded copy. The county returns the document with a recording number. Keep it with the deed. You'll need it if you ever sell or borrow against the land.
What it costs to record an affidavit of heirship
Texas Local Government Code section 118.011 sets a base fee of $5 for the first page and $4 for each additional page. Counties may add other fees, such as records management and archive fees. That's why many counties charge $25 for the first page.
| County | First page | Each additional page | Example: 4 pages |
|---|---|---|---|
| Bexar (San Antonio) | $25 | $4 | $37 |
| Travis (Austin) | $25 | $4 | $37 |
| Other counties | Varies | Varies | Varies |
If you record two affidavits separately, you pay for each. Two 4-page affidavits in Bexar would be $74. Sources: Bexar County Clerk and Travis County Clerk.
Add whatever the notary charges and, if you hire one, the lawyer's fee. Those vary, so get the price in writing first.
When an affidavit of heirship won't work
The affidavit is inexpensive, but it isn't right for every family. A title company or buyer may refuse it, especially when:
- There's a will. If fewer than 4 years have passed since the death, the usual path is to offer the will for probate (Estates Code §256.003).
- Minor children are heirs. A minor can't sign a sale on their own.
- The family disagrees, or some heirs can't be found.
- The death was recent. The 5-year rule doesn't apply yet, and some title companies ask for more.
- There are debts, mortgages or back taxes that need to be dealt with first.
- The family is complicated: several marriages, children with different partners or a common-law marriage.
In those cases, the usual options are probate or asking a court to declare who the heirs are (a determination of heirship). The law allows that at any time after the death (Estates Code §202.0025). For the bigger picture, read the heirs' property guide.
If you're unsure, look for free legal help in Texas. Many organizations help with heirship affidavits at no cost if you qualify by income.
Costs and timing
| Step | Cost | Approximate time | Where |
|---|---|---|---|
| Download the sample affidavit | Free | A few minutes | TexasLawHelp.org |
| Sign before a notary | Varies | One appointment | A notary public |
| Record in Bexar County | $25 first page, $4 each additional page | Varies | Bexar County Clerk |
| Record in Travis County | $25 first page, $4 each additional page | Varies | Travis County Clerk |
| Record in another county | Varies | Varies | The county clerk's office where the land is located |
| Ask for free legal help | Free if you qualify by income | Varies by organization | Free legal help in Texas |
Bexar fees effective January 1, 2024, per the county. Approximate costs; they can change. Call the county clerk before you go.
The law and official forms
The law
- Texas Estates Code §203.001: a sworn, notarized statement of family history and heirs that has been recorded for 5 years or more in the county deed records must be received by a court as prima facie evidence. Anyone interested can prove errors, and it doesn't affect the rights of an omitted heir or creditor.
- Texas Estates Code §203.002: sets out the statutory form (Affidavit of Facts Concerning the Identity of Heirs), with 16 numbered items about the decedent and family.
- Texas Estates Code §101.001: when a person dies without a will, their estate vests immediately in their heirs at law, subject to the decedent's debts.
- Texas Estates Code §§201.001–201.003: say who inherits without a will: children, spouse, parents and siblings, depending on the family.
- Texas Estates Code §202.0025: a court proceeding to declare heirship may be brought at any time after the death.
- Texas Estates Code §256.003: generally, a will can't be admitted to probate after the fourth anniversary of the death, with narrow exceptions.
- Texas Property Code §11.001 and §13.002: a real property document is recorded in the county where the land is, and once recorded it is notice to everyone (§13.002).
- Texas Local Government Code §118.011: sets the base fee to record real property documents ($5 first page, $4 each additional page) and lets counties add other fees.
Official forms
- Sample Affidavit of Heirship, TexasLawHelp.org: a model to work from, not a fill-in-the-blank form to record as is.
- How to Draft an Affidavit of Heirship, TexasLawHelp.org: TexasLawHelp's plain-language explainer.
When to call a lawyer
- The decedent left a will, even one that was never filed with a court.
- An heir is a minor, can't be found or doesn't agree.
- The decedent had children with more than one partner, more than one marriage or a common-law marriage.
- There are debts, a mortgage or back taxes on the land.
- A title company or buyer turned down the affidavit.
- Someone is offering to buy “your share” of the family land.
Find free legal help or check a lawyer at texasbar.com.
Frequently asked questions
What is an affidavit of heirship?
It's a sworn statement about a person who died and their family: who they were married to, who their children are and what land they owned. Someone who knew the family signs it before a notary, and it is recorded in the county where the land is.
How do I get inherited land into my name without probate?
If there's no will and the family is simple, many families record an affidavit of heirship. Keep in mind it doesn't transfer the land; it documents who the heirs are. If you want to sell or borrow against the land, the title company decides whether it will accept the affidavit or require probate or a court heirship ruling.
Who can be a witness for an affidavit of heirship?
Texas law requires someone who knows the family history to sign. In practice, TexasLawHelp says to find two people who knew the decedent, such as a neighbor or family friend, who won't inherit anything. If you can't find anyone outside the family, a relative who gets no money or land from the affidavit can sign.
How much does an affidavit of heirship cost?
TexasLawHelp's sample is free. Recording in Bexar or Travis County costs $25 for the first page and $4 for each additional page. Other counties vary. If a lawyer drafts it, fees vary; get the price in writing first.
Can I use an affidavit of heirship if there is a will?
Often not, or not by itself. If there's a will and fewer than 4 years have passed, the usual path is to offer it for probate. After 4 years, an affidavit is sometimes used, but many title companies ask for more. Talk to a lawyer.
Can I sell land with an affidavit of heirship?
Sometimes, but it's up to the title company. Each has its own requirements and may ask all heirs to sign, for more documents or for a court order. Ask the title company before you sign a sales contract.
What happens after the affidavit has been recorded for 5 years?
Under Estates Code §203.001, once the affidavit has been of record for 5 years or more in the county, a court must receive it as prima facie evidence of the facts in it. That means it's taken as true unless someone proves otherwise. It still doesn't cut off an omitted heir's rights.
Nuestras Tierras, https://nuestrastierras.org/en/texas/guides/affidavit-of-heirship/. Updated: 2026-10-23. Legal review: pending. General information, not legal advice.