Today let’s talk about probates and affidavit of heirships and why you might see the requirement for one or the other on your title commitment when buying and/or selling a property.

First let’s understand the meaning of each:

Probate is the court supervised process of making sure that a deceased person’s will is valid and appoints the executor or executrix of the estate or the administrator of the estate, depending on what kind of filing is done. There are different types of filings for probates and there is also a time frame in which a will can be probated.

Affidavit of heirship is something that is typically done when someone dies without a will or is done when the time has passed for the deceased person’s will to be probated. This document will state the history of the person. It will say when they were born, who they were married to and how the marriage was terminated (such as divorce or by death) it will also state if they had children (their ages and if they have predeceased the person the heirship is concerning) and what union the children we born to, if the person was married more than once. This document will determine the heirs of the deceased.

Why would the requirement for one or the other be seen on the commitment?

  • The seller owned the property with the deceased person and no probate or heirship was found of record.
  • The deceased person was the only vested owner of the property that was being sold and no probate or heirship was found of record.
  • If during the title exam it was found in the chain of title that a previous owner had died, and no probate or heirship was found of record. (This is common when property has passed from one family member to the next.)

Sometimes when a person passes away they reside in a different county than what the subject property is located in. If this is the case and the probate was done in the other county, the title company would require that a certified copy of the probate be obtained and filed for record in the same county as the property being sold. The same situation can apply to affidavit of heirships as well. If an heirship is filed in a different county, a certified copy would be obtained and filed of record in county that the property is located in.

If there is not a will or if the will was not probated in time, then the title company would require that an affidavit of heirship be obtained concerning the deceased and it would determine the heirs that would be the owners of the property.

These types of requirements are made to ensure that you as a buyer are being given a clear title to the property that you are purchasing. They also protect you as a seller when selling property, you inherited or think you solely own due to the other owner passing away. Remember that each transaction that requires these types of requirements to convey clear title are unique and may even require additional heirships or copies of probates. If you have questions on if you should probate a will or not, we suggest you reach out to a probate attorney to explore your options.