Probate vs. Affidavit of Heirship: Which Is Right for Your Situation?

You've just learned that probate could cost $5,000 and take six months. Or maybe a title company told you they need "proof of heirship" before you can sell your mother's house. Either way, you're trying to figure out your options—and whether there's a faster, less expensive path forward.

Good news: there often is.

In Texas, when someone dies without a will (or when a will was never probated), you typically have two main paths for transferring real property: formal probate through the courts, or an affidavit of heirship that bypasses the court system entirely.

The right choice depends on your specific situation. This guide will help you understand both options, when each one works, and how to decide which path makes sense for you.

Note: This article provides general information about Texas law and is not legal advice. Every situation is different, and complex cases may require consultation with an attorney.

The Quick Answer: It Depends on Your Situation

Let's start with the bottom line, then we'll dig into the details.

An affidavit of heirship is usually the better choice when:

• The main asset is real property (a house or land)
• The person died without a will—or the will was never probated
• All heirs are known and in agreement
• There are no significant unpaid debts
• You need to move quickly

Probate is typically necessary when:

• There's a will that needs to be admitted to court
• Heirs disagree about who should inherit
• The estate has significant debts or creditors
• Assets include bank accounts, investments, or business interests that require court authority to access

For many Texas families dealing with inherited real estate, an affidavit of heirship offers a dramatically faster and more affordable path. But it's not the right tool for every situation.

What Is Probate? (And Why Does It Cost So Much?)

Probate is the court-supervised process for settling a deceased person's estate. A judge validates the will (if there is one), appoints someone to manage the estate, oversees the payment of debts, and ultimately authorizes the distribution of assets to heirs or beneficiaries.

It's thorough. It's official. And it's expensive.

The Four Types of Probate in Texas

Texas actually offers several probate options, each with different costs and timelines:

Independent Administration — The most common type. When a will authorizes it—or all heirs unanimously agree—the executor can settle the estate with minimal ongoing court oversight. This is the "standard" probate most people think of.

• Typical cost: $3,000–$7,000+
• Timeline: 6–12 months
• Best for: Estates with multiple asset types or debts requiring formal administration

Muniment of Title — A simplified option when a valid will exists and the estate has no unpaid unsecured debts. The court admits the will as evidence of title in a single hearing, without appointing an executor.

• Typical cost: $1,500–$2,500
• Timeline: 30–60 days
• Best for: Estates with a will where real property is the primary asset

Dependent Administration — Required when beneficiaries disagree, no will exists and heirs can't reach consensus, or the court determines oversight is necessary. The administrator must get court approval for most actions.

• Typical cost: $10,000–$50,000+
• Timeline: 1–2+ years
• Best for: Contested estates or situations requiring judicial supervision

Small Estate Affidavit — A court-approved option for intestate estates valued under $75,000 (excluding homestead and exempt property). All heirs must sign, and a judge approves the affidavit.

• Typical cost: $500–$1,500
• Timeline: 30–60 days
• Best for: Smaller estates with limited assets

Why Probate Costs Add Up

The sticker shock of probate comes from multiple sources:

Court filing fees run $250–$500 depending on the county—that's just to open the case.

Attorney fees represent the bulk of probate costs. Even straightforward independent administrations typically require $1,500–$3,000 in legal fees. Complex or contested estates can run much higher. Most probate attorneys bill hourly, which means delays and complications translate directly into higher costs.

Publication and notice requirements add smaller but unavoidable expenses.

Time costs matter too. While you're waiting for probate to complete, the property sits. You can't sell it. You can't refinance it. The carrying costs—taxes, insurance, maintenance—continue to accumulate.

For a family that simply needs to transfer a house, probate often feels like using a sledgehammer when a screwdriver would do.

What Is an Affidavit of Heirship?

An affidavit of heirship is a sworn legal document that identifies the heirs of someone who died without a will (or whose will was never probated). Once properly prepared and recorded in the county property records, it provides evidence of who inherited the property—which is what title companies need to allow the property to be sold, refinanced, or transferred.

Think of it as creating a paper trail that establishes the chain of title from the deceased owner to the legal heirs.

How It Works

The affidavit must be signed by people with personal knowledge of the deceased's family history—typically two "disinterested witnesses" who knew the deceased for at least ten years and have no financial stake in the estate.

The document details:

• The deceased's complete marital history
• All children (including deceased children and their descendants)
• Parents, siblings, and other potential heirs
• A legal description of the property

Once signed, notarized, and recorded in the county where the property is located, the affidavit becomes part of the public record. Title companies can then rely on it to insure the property for sale or refinance. For a comprehensive explanation, see our guide to affidavits of heirship.

The Five-Year Rule (And Why It Usually Doesn't Matter)

Texas Estates Code Section 203.001 addresses when an affidavit of heirship gains full legal weight:

"An affidavit of heirship... that has been of record for five years or more in the deed records of the county in which the property is located is prima facie evidence of the facts stated in the affidavit."

— Texas Estates Code § 203.001

This means the law presumes the affidavit is accurate unless someone proves otherwise—but only after five years on record.

This rule sometimes concerns families who need to sell property immediately. Here's the reality: most title companies will accept a well-prepared, attorney-reviewed affidavit right away—especially for routine residential transactions. The five-year rule provides additional legal protection, but it doesn't mean you have to wait five years to transfer property.

What matters most to title companies is whether the affidavit is thorough, accurate, and professionally prepared. A sloppy or incomplete affidavit creates risk. A properly done one—with clear documentation and attorney review—gives title companies the confidence they need to insure the transaction.

Side-by-Side Comparison

When Probate Is the Right Choice

Despite the cost and time involved, probate is sometimes the necessary path. Here's when you should expect to go through the courts:

There's a Will That Needs to Be Probated

If your loved one left a valid will, you generally need to probate it to give effect to their wishes—especially if they left property to anyone other than their intestate heirs (like a friend, charity, or stepchild).

Texas law also imposes a four-year deadline for probating a will. After four years, the will can only be probated under limited circumstances. If that deadline has passed, the estate is typically treated as intestate, which may open up the affidavit of heirship option.

Pro tip: If a will exists but the four-year window has closed, an affidavit of heirship may actually be your best path forward for transferring real property.

Heirs Disagree

Affidavits of heirship require cooperation. If one sibling thinks they should get more than their legal share, or if there's a dispute about who qualifies as an heir, you need a judge to make binding determinations.

Contested heirship situations typically require a formal "determination of heirship" proceeding—a court case where a judge decides who the legal heirs are and in what proportions they inherit.

Significant Debts Exist

Texas law generally requires probate administration when an estate has substantial debts. Creditors retain their legal rights regardless of whether you file an affidavit of heirship—the statute explicitly states that an affidavit "does not affect the rights of an omitted heir or creditor."

Assets Beyond Real Property

Bank accounts, brokerage accounts, retirement funds, and vehicles typically require Letters Testamentary (the court document appointing an executor) to transfer. Financial institutions almost universally require court documentation—they won't accept an affidavit of heirship.

When an Affidavit of Heirship Is the Better Path

For many Texas families, an affidavit of heirship offers exactly what they need: a fast, affordable way to clear title on inherited real estate. Here's when it works well:

The Primary Asset Is Real Property

If you're dealing with an inherited house or land—and that's the main asset—an affidavit of heirship is purpose-built for your situation. It establishes the chain of title that allows the property to be sold, refinanced, or transferred to heirs.

No Will Exists (Or the Will Was Never Probated)

Affidavits of heirship apply specifically to intestate situations—where Texas law determines the heirs rather than a will. If your loved one died without a will, or if a will exists but was never probated and the four-year deadline has passed, you're in affidavit territory.

All Heirs Are Known and Agree

The process works smoothly when the family situation is clear: everyone knows who the heirs are, those heirs accept their legal shares, and there's no dispute about how to handle the property.

This doesn't mean all heirs have to sign the affidavit—in fact, they don't. The affidavit is signed by disinterested witnesses, not the heirs themselves. But it does mean the heir identification must be accurate and complete.

Time Is a Factor

When families need to sell property to divide proceeds, settle affairs, or simply move forward, waiting 6–12 months for probate isn't realistic. Affidavits of heirship can be completed in weeks, not months—clearing title so the property can be sold when you're ready.

The Estate Has Minimal Debts

If there are no significant creditors pursuing claims against the estate, an affidavit of heirship provides a clean path forward. Small debts (like a final utility bill) don't disqualify you, but if the deceased owed substantial amounts, probate may be more appropriate.

The DIY Risk: Why Professional Preparation Matters

Yes, you can technically draft an affidavit of heirship yourself. The form isn't complicated. But here's what we've seen go wrong:

Incomplete family history. If you miss an heir—even one you didn't know existed—the affidavit is defective. We've seen cases where a half-sibling from decades ago created title problems that took years to resolve.

Improper witness qualifications. The witnesses must be truly "disinterested" with no financial stake, and they must have sufficient knowledge of the family. Title companies scrutinize this.

Missing documentation. Death certificates, marriage records, divorce decrees—the supporting documentation matters. Without it, title companies may reject the affidavit.

Legal description errors. The property must be described precisely as it appears in the deed records. Errors here can void the entire document.

No attorney review. Title companies strongly prefer—and sometimes require—affidavits that have been reviewed by a licensed attorney. DIY documents often raise red flags that delay or derail transactions.

The cost of fixing a rejected affidavit—or worse, a title dispute years later—far exceeds the cost of doing it right the first time.

Can You Use Both? (Hybrid Approaches)

Sometimes the answer isn't either/or. Here are situations where combining approaches makes sense:

Affidavit Now, Probate Later

If you need to sell real property quickly but the estate also has bank accounts or other assets, you might use an affidavit of heirship to clear title on the house while separately pursuing probate for the other assets. This parallel approach keeps the property sale on track while the court process unfolds.

Muniment of Title: The Middle Ground

If a will exists and there are no unpaid unsecured debts, muniment of title offers a streamlined court process. At $1,500–$2,500 and roughly 30 days, it provides the certainty of a court order without the full cost and timeline of formal administration. For estates with a will where real property is the main asset, it's often the sweet spot.

Small Estate Affidavit Plus Affidavit of Heirship

For qualifying small estates (under $75,000 excluding homestead), you might use the court-approved small estate affidavit for financial accounts while using a separate affidavit of heirship for real estate—each tool applied where it works best.

A Simple Decision Framework

Still not sure which path fits your situation? Walk through these questions:

1. Does a valid will exist that hasn't been probated?

• Yes, and within 4 years → Consider muniment of title or independent administration
• Yes, but 4+ years have passed → Affidavit of heirship may be your best option
• No will exists → Continue to question 2

2. Do heirs disagree about who inherits or how to handle the property?

• Yes → You need court involvement (determination of heirship)
• No → Continue to question 3

3. Are there significant debts or creditors?

• Yes → Formal administration is likely necessary
• No → Continue to question 4

4. Is real property the primary asset?

• Yes → Affidavit of heirship is likely your best path
• No (substantial bank accounts, investments, etc.) → Probate may be necessary for those assets

5. Do you need to move quickly?

• Yes → Affidavit of heirship (weeks) vs. probate (months) matters
• Timeline is flexible → Either option may work; weigh cost vs. legal certainty

What This Means for You

If you're reading this article, you're probably in one of these situations:

You inherited property and need to sell it. The title company told you they need proof of heirship before they can close. An affidavit of heirship is likely your fastest and most affordable path—assuming the heirs are known and agree.

You're a surviving spouse. You may be surprised to learn you don't automatically own everything, especially if stepchildren are involved. Understanding your actual rights helps you plan appropriately.

You're trying to clear title on a family property. Maybe it's been years since someone passed, and now you want to sell or refinance. Even old heirship issues can often be resolved with a properly prepared affidavit.

Someone told you probate will cost thousands and take forever. That may be true—or there may be a better option. The answer depends on your specific facts.

Taking the Next Step

Dealing with legal processes while managing grief and family logistics is hard. The terminology is unfamiliar, the stakes feel high, and you don't want to make an expensive mistake.

Here's our recommendation: before you commit to probate—and the cost and time that involves—find out whether an affidavit of heirship could work for your situation. In many cases, it's the faster, more affordable path. In others, it's simply not the right tool. Either way, you deserve to make that decision with clear information.

For more information about Texas probate and inheritance law, visit the Texas Estates Code on the Texas Legislature website or the Texas State Law Library's probate resources for self-help guides.