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Such property is often referred to as “heirship property

If a person dies without a will, and title to his or her property does not expressly include joint tenancy with survivorship language, then issues may arise as to which persons now have a title and in what percentages. ” It is essentially unsellable as it is, and a title company will not insure the title until heirship issues are addressed and resolved. This is usually accomplished by either a probate proceeding in county court, resulting in appointment of a personal representative of the estate and ultimately a judgment determining heirship, as provided by Estates Code Section 202; or by the less formal and expensive method of utilizing an affidavit of heirship (Est. Code §) followed by a “curative deed” or “consolidation deed” (our terms) signed by the surviving heirs in favor of a new sole owner.

Even if the decedent had a will, an affidavit of heirship ent is not self-executing as to bequests of real property. It is merely a statement of the decedent’s intent. The will must be acted upon in some manner, either by means of a formal probate proceeding (filed within four years of death) or by means of a recorded affidavit of heirship, the result of which is to declare as a matter of record the identity and interests of the heirs.

The affidavit must be signed under oath by a person familiar with facts relating to family circumstances and history, which is usually but not always a family member

If an investor is faced with probate issues, then an attorney who is a board-certified specialist in that area should generally be consulted.

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