my Dad passed away with a will on Friday, leaving everything to my mom. She filed an adv. of heirship. does she need to probate the will? l In texas

Asked on May 22, 2009 under Estate Planning, Texas


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Although I am not a Texas lawyer, my understanding is that an affidavit of heirship can be used to effectively transfer legal title to Texas real estate to the heirs at law where there is no Will as an alternative to going through the probate process.

Filing an affidavit of heirship in the county in which the real estate is located satisfies future holders of the property and most lenders and title insurance companies that there was a  valid transfer of the property to the heirs at law, enabling the property to be sold. However, if your father had additional assets, such as shares of stock, etc. that did not pass by means of beneficiary designations it makes sense to file the Will and go through probate.

Further, if the Will specifies that the property is to be transferred in a matter other than the way it would be transferred by operation of law to (such as if the Will says property was to be left fully to your sister and at law his share would go to your mother, you and your sister) the Will should be probated.

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