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hi my name is Isaac Shutt I'm an estate planning  attorney and probate attorney I'm licensed both in   Texas and in Wyoming today I'm going to talk about  affidavits of heirship what is an Affidavit of   Airship well an Affidavit of heirship comes into  play after a person has passed away and it deals   with transferring property and more specifically  real property or real estate so where this really   comes into play is where a person like a loved  one has died and really all they had in their   name was a piece of real estate maybe it was their  home you know maybe it was an investment property   but they had a little bit of land or real estate  ownership that needs to get transferred to The   Heirs and so the Affidavit of heirship is actually  it's it's labeled non-judicial evidence of air   ship and so that's different from a determination  of heirship which is where you actually go to a   probate court and get a document signed by a judge  legally determining Who The Heirs are whereas the   Affidavit of heirship is non-judicial meaning it  didn't go through court so even though it's really   confusing because you have Affidavit of heirship  and determination of heirship they are not the   same thing at all so an Affidavit of heirship  uh doesn't go through Court determination of   heirship does now in a separate video I'll talk  about determination of heirship and when that's   applicable and when that's better but this video  is just about the Affidavit of heirship okay so   when a person has died and really all they had  in their name is a piece of real estate no bank   accounts without beneficiary designations no other  assets to speak of well the Affidavit of heirship   could be a good way to go the way it works is  two disinterested Witnesses so people that have   no Financial bearing in who's getting property  those two disinterested Witnesses would sign an   affidavit that lays out the family and marital  history in descendants history of the deceased   person and then by operation of that the Affidavit  of heirship says okay based off this family   history here's Who The Heirs would be you're not  required to have an attorney prepare affidavits of   heirship after a person passes away and so if  the Affidavit of heirship is a good way to go   um there are forms online and things like that you  know I will tell you just to be totally blunt most   of the DIY affidavits of heirship I've seen are  wrong because they don't lay out the family or   marital history of the deceased correctly and that  can be a big problem when it comes to titling real   estate so it is usually better to go see a probate  lawyer to do affidavits of Airship and then also   sometimes title companies will prepare affidavit  severe ship and they're pretty good at them and   do a good job it's worth the minimal amount of  money it takes to get affidavits of heirship   done just to pay a professional to have it done  for you that way you know it's right and that's   really important with an Affidavit of heirship  be because with this non-judicial evidence of   heirship the law Texas law says that it doesn't  really do anything until it's been on file for   five years so it's not non-judicial evidence of  Airship until the affidavits of Airship have been   filed in the real estate record and hasn't been  contested for a period of five years and honestly   that five-year thing where it's got to be filed  for at least five years for a lot of people that's   a deal breaker you know they say look Isaac my  mom passed away I'm the only child so under the   Affidavit of heirship it's going to say that I'm  the sole heir to the estate why wouldn't I want   an Affidavit of heirship and my response would  be well if you're wanting to sell it pretty soon   um and you don't want to wait that five-year  period Then the Affidavit of heirship may   not be the way to go Affidavit of heirship works  really well uh when I have like a married couple   and if the other spouse a surviving spouse will  be inheriting everything under that Affidavit   of heirship and they're going to continue to  reside in that home for a long period of time   sometimes an Affidavit of heirship would work  really well but that five-year thing where it   needs to sit in the record can be a deal breaker  now I will tell you that five-year rule where   the affidavit Affidavit of heirship needs to sit  there not all title companies require the seller   of a piece of real property to wait that full  five-year period so it really just depends on   the title company and the title underwriter when  you go to sell that deceased person's property   and therein lies another problem with the  affidavits of Airship they don't have to be   accepted so if you are planning to sell your  deceased loved ones property and you're going   to use that affidavit of heirship with the title  company um what can happen is you can get all the   way till days before closing and then the title  company you know just without a lot of Pomp and   Circumstance will tell you I'm sorry we've just  heard back from the title underwriter that they   won't even accept your Affidavit of heirship  and so you've gone through this hassle of paying   money to have affidavits of heirship prepared  and signed by Witnesses only to find out right   before you're closing that it's not going to be  accepted to transfer title to whoever that buyer   is and that creates a problem for you because  that buyer has a contract with you you promised   to deliver good title to that home and you  thought you were all good to go and now that   you came to a day before closing and you're not  going to be able to close with that title company   you're potentially in breach of contract  because your contract says you're going to   deliver a good title that next day and you're  not going to be able to do that so affidavit   severe ship in a lot of cases are are really  risky so you've got some clients who say Isaac   I'm a gambler let's just go with the affidavits of  heirship because it's less money and if the title   underwriter doesn't accept that the week before  I close I'm okay with that I'll just deal with   whatever the breach of contract issue is at that  time I'm good with that because the Affidavit of   heirship is so much cheaper than any of the other  options I'm I'm willing to roll the roll the dice   on that and then we have other clients that say  you know what for the relatively small increase in   cost I'd rather deal with guarantees I don't want  to deal with maybe this works and maybe I won't   be in breach of contract with this affidavits  a very cheap heirship thing I want something   that's a guarantee well if you want something  that's a real guarantee then the Affidavit of   heirship even though it's less money is probably  not what you want so it's really a case-by-case   thing depending on what surviving family members  there are what property there is and then also   like I said if there's anything other than  that piece of real estate that Affidavit of   airships not going to work so like for example  if the deceased person had a bank account that   didn't have a beneficiary designation you're not  going to be able to use affidavits of heirship to   get into that bank account the Affidavit of  heirship document is a real estate document   anyway I've probably given you more detail than  you even wanted to know but I hope you found this   video helpful it's been all about affidavits of  heirship in some other videos I'm going to talk   about determination of heirship and then also  a small estate affidavit and again my name is   Isaac Shutt I'm an estate planning and probate  attorney licensed both in Texas and in Wyoming