I sell a lot of inherited houses in Central Texas, and for years the affidavit of heirship was the quiet workhorse of these deals. Somebody passed away, the family had a clear story about who the heirs were, two witnesses signed an affidavit, and the house moved. It was cheaper and faster than a full court process, so it was everywhere.
Lately that has been changing, and it caught me off guard. In a conversation with a probate attorney I work with, she told me title companies have started rejecting affidavits of heirship outright. As someone who does many of these deals a year, I had not run into it yet, but she is an attorney and she is closer to the legal end of this than I am. If you are about to sell or buy an inherited Texas house that relies on an affidavit of heirship, this is something you want to understand before you are sitting at a closing table.
This article is for informational purposes only and is not legal, financial, or real estate advice. Talk to a qualified probate attorney about your specific situation.
What an affidavit of heirship actually is
An affidavit of heirship is a sworn statement, signed by two disinterested witnesses, that lays out who the heirs of a person who died are. In the simplest version the attorney described, it is used when a husband and wife had children only together, neither had children from another marriage, and the property essentially passes to the surviving spouse. In that kind of clean situation it is straightforward, and it has historically been a cheaper and quicker path than going through muniment of title or a full administration.
The key word is *disinterested*. The witnesses are swearing to who the heirs are based on what they personally know. They are not investigators. They sign “to my knowledge,” and as the attorney put it, they cannot testify to what they do not know and cannot be held liable for what they do not know.
That is exactly where the risk lives.
Why title companies are pulling back
Here is what the attorney explained, and she had also talked to a friend who was a title attorney before leaving to do probate law. Title companies had claims filed against them on deals that closed off affidavits of heirship. The pattern goes like this: an affidavit leaves out an heir, the title company issues a title policy relying on that affidavit, the left-off heir later finds out, and now there is a claim against the policy.
When a title company closes a deal and issues a policy, it has taken on the risk. So when affidavits started producing claims, the companies got, in her words, skittish. Her title-attorney friend went further and said this is part of why she closed down her title business. It was simply getting too difficult.
There was also a lawsuit. The attorney mentioned that somewhere in Texas somebody got sued over one of these. She had not looked up the case and could not point to where it was, but her point stands on its own: when claims and lawsuits start happening, the industry tightens up, and that is what she is seeing now.
One more telling detail. She told a client to just have their title company draft the affidavit of heirship, and the title company refused. They do not want to be in that business anymore.
Is it everywhere, or is it regional?
This is worth being honest about. The attorney was careful not to overstate it. In a closed Texas probate lawyers’ group, some attorneys reported the same trouble, and then another attorney said he had been doing affidavits of heirship all along with no problems. Her own theory was that it might be concentrated in certain areas. The title companies where she practices had a claim filed, so they shut things down, and her title-attorney friend was running into the same thing over in the Fort Worth area.
So this is not “affidavits of heirship are dead statewide.” It is “this is moving, it is uneven, and you should not assume the affidavit that worked last year will sail through this year.”
Why an heir gets left off in the first place
The scary part is that leaving an heir off does not require fraud. The attorney described the realistic version: there is an estranged child who has been gone for 20 years, nobody knows where they are, the family cannot get them to agree to anything, so the name just gets left off the affidavit. Sometimes the parents wrote that child off and never even told the neighbors, so the two witnesses do not know the child exists either. The witnesses sign honestly based on what they know, and the affidavit is still wrong.
There is also the “wink, wink, nod, nod” version she described, where witnesses are leaned on to just leave a kid off. That one can be intentional. Either way, the title company is the one holding the risk if it closed the deal.
The risk to you as a buyer or seller
If you are buying a house whose chain of title runs through an affidavit of heirship, there is a small but real risk. The attorney was clear it is small. She said in 25 years she has only had a left-off heir surface once, and she would not talk people out of using an affidavit of heirship over it. But “small” is not “zero.” A left-off heir who later surfaces can make a claim, and if the deal closed with a title company, they can file a claim against the title company.
If you are selling, the practical problem is different. Even if your affidavit is perfectly honest, the next title company in line may simply not accept it. The attorney’s first move in that situation was pragmatic: try a different title company, because most of them will still take it. But you should plan for the possibility that you cannot just push the affidavit through, and that you may need a different legal path.
And this applies beyond affidavits. The attorney’s broader point was that anytime you do anything outside the normal progression of a will with letters testamentary and probate, there is a small risk. She gave the example of selling a house under a power of attorney while a spouse was hospitalized. It works, it is legitimate, but there is always a sliver of “how do we know” that someone could raise later.
What I tell families in Central Texas
When a sale depends on an affidavit of heirship, I am not the person who decides whether it is the right tool. That is a legal call, and it belongs to a probate attorney who can look at the actual family, the actual heirs, and the actual estate. What I can do is flag it early so it does not blow up a closing.
If you are getting ready to sell an inherited house and someone has mentioned an affidavit of heirship, the move is to get a probate attorney to look at the heir picture before the house goes under contract, and to expect that a particular title company might say no. Build that into the timeline instead of discovering it the week of closing.
Watch the full video on YouTube: Why Texas Title Companies Are Rejecting Affidavits of Heirship
Frequently Asked Questions
Why are Texas title companies rejecting affidavits of heirship?
Title companies have had claims filed against them when an affidavit left out an heir and they had already issued a title policy relying on it. After claims and at least one lawsuit, many companies became cautious and some stopped accepting affidavits of heirship altogether.
Is an affidavit of heirship still safe to rely on when buying a Texas house?
There is a small but real risk. A probate attorney interviewed for this said she had a left-off heir surface only once in 25 years and would not dissuade people from using an affidavit, but a missed heir who later appears can bring a claim, and if a title company closed the deal, a claim can be filed against the title company.
What happens if an heir is left off an affidavit of heirship?
The left-off heir can come forward later and pursue a claim for their share. If the sale closed with a title company that issued a policy off the affidavit, the heir may be able to file a claim against the title company.
What should I do if a title company rejects my affidavit of heirship?
A common first step is to try a different title company, since many will still accept it. If that does not work, talk to a probate attorney about another legal path to clear title for the property. Do not assume the affidavit will go through.
Is this happening everywhere in Texas?
Not uniformly. Some attorneys report rejections in their area while others say they have never had a problem. It appears to be uneven and possibly regional, which is exactly why you should not assume your situation matches someone else’s.
Let's Sort This Out Before It Becomes a Problem
If you are selling an inherited house in Central Texas and you are hearing the words “affidavit of heirship,” let’s talk before it turns into a closing-week emergency. I work alongside probate attorneys every week, and I will help you get the right person looking at the title picture early so the sale actually closes.
Call 512-686-3076 or visit texasprobaterealestate.com. No pressure, no obligation.