Intestate Succession.  When an owner of real property dies “intestate” (without a valid last will & testament), their interest in the real property will pass pursuant to the laws of descent and distribution, commonly referred to as “intestate succession”, found in Tex. Estates Code §201.  

Inception of Title.  In order to determine which rules of intestate succession apply, you must first determine the manner in which the “decedent” (the deceased owner) acquired the real property.  

Character of Title.  In Texas, real property acquired during a marriage is presumed to be “community property” while property you acquired while single or through inheritance is “sole and separate property”.

Affidavits of Heirship.  In order to place all parties on notice as to the descent and distribution of the decedent’s interest and proceed with a sale of real property, Texas underwriter’s require the decedent’s family and two disinterested witnesses execute an affidavit of facts concerning the identity of heirs which is commonly referred to as an “affidavit of heirship”.  At or before the closing, the affidavit of heirship will be recorded in the real property records so as to place all parties on notice as to the descent and distribution of the decedent’s interest.  

When insuring a sale of real property in reliance of an affidavit of heirship, please note most Texas underwriters require the passage of at least 90 days and as many as 6 months from the date of death of the decedent before they will insure.  Though this delay serves multiple purposes, the main purpose is to allow any potential creditors to file a claim against the decedent’s estate prior to any closing.  

To qualify as a disinterested witness, you must not be related to the decedent or the decedent’s extended family and you must have known the decedent for at least 10 years prior to their death.