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Which wins: Court Order or Affidavit of Facts?

Dear Mr. Premack: My brother filed with the county records an Affidavit of Facts Concerning the Identity of Heirs. The deceased person (our father) passed away 20 years ago, and his Will was probated then. Property transferred to our mother using the Muniment of Title Court Order. The only issue is that mother never removed our father’s name from the title, and my brother recently filled out an Affidavit stating there was no Will and no probate. Should this Affidavit be removed from the county records as there was a Will and there was probate? This was all done in preparation for mother to sign a warranty deed and to show a chain of title. Is this legal and the most appropriate course of action? – E.R.

What you have asked about in your question are two competing legal processes. Legal processes should be complementary, not contradictory (and ideally, there should be only one process, not two).

First, your father’s Will was admitted to probate as a Muniment of Title before the local probate court. The Court’s Order, by law, transfers title to all assets held by the decedent. The Court’s Order is the equivalent of a deed. In your case the Court Order made your mother owner of their home because your father’s Will required it. The Order removed his name from the title.

It is common after the Will is admitted to probate as Muniment of Title to obtain a certified copy of the Court Order and of the Will from the Probate Clerk. After being issued and received, the certified copy is then recorded in the County Clerk’s real property records to provide public notice that the title has been transferred. It is implied in your question this step did not occur in your father’s estate. Nonetheless, the Court Order is valid and is a recorded public record (but recorded in the Probate records, not in the Real Property records).

Second, your brother (likely without consulting the attorney who probated your father’s Will) was perhaps trying to help based on his ignorance of the detailed laws of the Texas probate process. I say "help" because Texas law is clear that even in the absence of a probate your mother is the person entitled to inherit your father’s half of their homestead, unless your father had children from outside this marriage. Also, your father's instructions in his probated Will always supersede default state inheritance law. Because the court Order exists, the Affidavit of Facts was unnecessary and is superfluous.

Legally, an Affidavit of Facts is “prima facia” evidence of the facts – meaning that it is taken as true unless proven to be false. In the event the Affidavit of Facts filed by your brother contradicts the Order, Texas law gives priority to the court’s Order and voids the Affidavit.

It would be wise for your mother to a) contact the Probate Clerk’s office, buy a certified copy of the Order and Will, and then b) record it with the Real Property Clerk’s records. Any title company will then be more likely to see the Order.

Finally, you said this was all done in preparation for your mother to sign a new warranty deed. To whom is your mother conveying the house and why? If it is a straightforward sale of the house then she’ll get the money from the sale, so no problem. Possible problems occur if she is signing a deed for other reasons (like to avoid a Medicaid Estate Recovery claim). Your mother should consult with a qualified Certified Elder Law Attorney before taking further legal action. A house is a valuable resource, so handling the title and the estate planning correctly are well worth any legal fee involved.


Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.

Column published on October 28, 2022.

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