Does Affidavit of Heirship override Mom’s Will?

Dear Mr. Premack: My mother drew up an affidavit of heirship after her husband passed away but she did not list all of the children in the affidavit. Later, she made a Will naming all of her children as heirs. My question is: does her will replace the affidavit or does the affidavit take priority? – EBM

According to Texas law, when your parents were both alive, they were co-owners of certain assets (like bank accounts and a house). Under usual circumstances, those items were community property owned 50-50 between them. Your mother’s husband died first, without a Will. According to state law, his 50% share passed to his wife (unless he had children from a prior marriage).

Her legal difficulty was the lack of documentation to prove that she was now 100% owner of the assets. The affidavit of heirship was created to act as the documentation of her ownership. While it is traditional to list the names of all the children in the affidavit, the law provides that if all of HIS children were also HER children, then SHE was his sole heir. In that case, failure to list all the children does not change the legal outcome. (But if he had any children from a prior marriage, then failure to list them was not legally correct).

Assuming it is true that she became owner of 100% of the assets, she next (wisely) decided to make a Will. In it she named all of the children as heirs. Her Will does not “replace” the affidavit. Rather, they do two different jobs at two different times. The affidavit recognized her legal ownership of her husband’s half of their community property because he died without a Will. Her new Will allows her to dispose of that property in the manner she desires when she eventually dies.

It is difficult to tell from your letter whether your mother has already died. If she is deceased, then the Executor she nominated in her Will should talk to a qualified probate attorney about the next steps. It is likely that her Will should be reviewed by the probate court so that letters testamentary can be issued to her Executor. That Executor can then legally take the actions necessary to divide her assets among the children as called for in her Will.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, June 24, 2011

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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