Prepared by a licensed U.S. attorney
Heir property is land or a house that passed to a deceased owner's relatives, usually without a will or probate, so the heirs own it together in undivided shares while the deed still names the person who died. Every heir owns a fraction of the whole, the fractions split again each generation, and nobody can sell, borrow, or get repair aid without the others. The fix is paperwork: proof of who the heirs are, recorded or ordered by a court, then deeds or a partition. We draft the affidavit of heirship, the heirship application or petition, deeds and buyout agreements among co-heirs, co-ownership agreements, and partition and quiet title pleadings. The heirs or their counsel review, sign, record, and file.
The short answer
To get heir property in your name, first establish the heirs: an affidavit of heirship recorded in the county, or a court order (Texas Estates Code Chapter 202, California Probate Code Section 13151, Florida Section 733.105). Then the other heirs deed their shares to you, or a court partitions the land. Texas, Florida, and California give heirs a court appraisal and a right to buy out a co-owner who wants a sale.
Est. 202 · 203 · Prop. 23A · 64.201
Prove the heirs, record it, then deed, buy out, or partition
When an owner dies without a will, the land passes to the heirs the state's intestacy statute names, and they hold it as tenants in common. Each owns an undivided interest: a fraction of the whole property, not a particular room or acre. Nothing is recorded to show this. The deed in the county records still names the person who died, and the title stays tangled until someone proves the heirs and records that proof.
The trouble compounds. When an heir dies, that heir's fraction splits among their own heirs, so four children become a dozen grandchildren with shares like 1/12 and 1/8. Any one of them can sell a fraction to a stranger, and any co-owner, including that stranger, can ask a court to partition the land.
The uniform partition act gives the term a precise test. Texas Property Code Section 23A.002(5) and Florida Section 64.202(6) define heirs property as real property held in tenancy in common, with no agreement in a record binding all the cotenants that governs partition, where at least one cotenant got title from a relative and 20 percent or more of the interests, or of the cotenants, are relatives or came from a relative. California's version skips the test and covers every tenancy in common without a binding agreement (CCP Section 874.311(b)).
The Lincoln Institute of Land Policy reports that heirs property is most common across the South and that, in Dallas and Tarrant Counties, Texas, over half of property tax foreclosures studied were heirs properties. The losses follow a pattern, and each one has a paper that answers it.
The bill keeps coming in the decedent's name, one heir pays some years and not others, and a homestead exemption lapses because nobody can show ownership. Texas now lets an heir property owner claim the homestead exemption with an affidavit establishing their interest, the prior owner's death certificate, and a recent utility bill, without a recorded deed, and requires any co-owner who also lives there to sign an affidavit authorizing the application (Tax Code Section 11.43(o), (o-1), (o-2)). Granting it does not transfer title (Section 11.49).
A cousin who moved away, or an investor who bought that cousin's share, files for partition. Before the uniform act, a house that could not be split was often sold at auction. The act now requires an appraisal, a buyout window, and a preference for division before any sale.
Lenders and most repair-assistance programs need a borrower whose name matches the deed and the consent of every owner. With dozens of heirs, that is rarely possible until title is cleared.
One heir signs a deed for the whole property, or a relative records an affidavit naming only part of the family. Those papers do not bind the omitted heirs, and they invite a quiet title suit later.
Learning how to get heir property in your name starts with a fact people miss: proving heirship does not put the land in your name. It puts it in all the heirs' names, in the fractions the statute sets. Getting to one name takes a second step: the others deed their shares to you, you buy them out, or a court partitions the land and awards it to you through the buyout.
So the work runs in two stages. First, establish who the heirs are, by recorded affidavit or court order. Second, consolidate, by deed, agreement, or partition. The cards show the four routes and when each one fits.
Tex. Est. Code 203.001, 203.002
A sworn statement of the family history, recorded in the deed records. Fast and inexpensive, and after five years of record a Texas court must receive it as prima facie evidence of heirship. It does not cut off an omitted heir or a creditor (Section 203.001(d)), and some title companies want more.
Fits when: Small families, no dispute, and a buyer or title company willing to insure on it.
Tex. Est. Code ch. 202; Cal. Prob. Code 13151, 11700; Fla. Stat. 733.105
A court order naming the heirs and their shares. Slower, but final: a Texas heirship judgment is a final judgment, protects good-faith buyers, and can be recorded as constructive notice (Sections 202.202, 202.204, 202.206).
Fits when: Unknown or missing heirs, a family that disagrees, or a title company that will not accept an affidavit.
Deeds among co-heirs; buyout and co-ownership agreements
Once the heirs are established, the ones who want out deed their shares to the ones who stay, for a price or as a gift, and the family signs a written agreement on who pays taxes, who lives there, and how a future sale works.
Fits when: Heirs who agree on who keeps the property and need it on paper.
Tex. Prop. Code ch. 23A; Fla. Stat. 64.201 to 64.214; Cal. CCP 874.311 et seq.
When a co-heir or an outside buyer will not cooperate, a court can divide the land, approve a buyout, or order a sale, and a quiet title action resolves competing claims to who owns what.
Fits when: A holdout heir, an investor who bought a share, or a deed someone signed that should not count.
An affidavit of heirship is a sworn statement of the decedent's family history, signed before a notary and recorded in the deed records of the county where the land sits. Texas gives it statutory weight. Once an affidavit has been of record for five years or more in the county where the property is, or where the decedent lived, a court must receive its statements as prima facie evidence in a heirship proceeding or a suit over title (Estates Code Section 203.001(a)). Section 203.002 supplies a form, and the outline at right follows it.
Its limits matter as much. Anyone with an interest may prove the true facts if the affidavit is wrong (Section 203.001(b)), and it does not affect the rights of an omitted heir or a creditor (Section 203.001(d)). A buyer's title insurer decides whether it will insure on an affidavit alone; when it will not, the answer is a court determination of heirship.
For the plain form, see our affidavit of heirship template; for how it is used outside Texas, see which states accept an affidavit of heirship. On this page we draft it as part of the whole title plan.
Sample outline, Texas Estates Code Section 203.002 form
Affidavit of Facts Concerning the Identity of Heirs
Signed by the affiant before a notary, then recorded with the county clerk where the land is located.
A determination of heirship is a court judgment naming the decedent's heirs and their shares. In Texas it is a proceeding to declare heirship under Estates Code Chapter 202. It is available when a person dies without a will owning property in Texas and there has been no administration, or when property was left out of a will or administration (Sections 202.001, 202.002), and it may be brought at any time after death (Section 202.0025). The application must give the decedent's death details, every heir with a physical address, relationship, age status and share, every child, every marriage and how it ended, and a description of the property (Section 202.005), supported by each applicant's affidavit (Section 202.007).
Two features make it the stronger tool for heirs property. Every person the county deed records show as owning an interest in the land must be made a party (Section 202.008(3)), and the court must appoint an attorney ad litem for heirs whose names or locations are unknown (Section 202.009). The judgment is final (Section 202.202), a certified copy can be recorded in the deed records as constructive notice (Section 202.206), and it protects a good-faith buyer against a later-surfacing omitted heir (Section 202.204). An heir who was never properly served can reopen it by bill of review within four years, or later on proof of actual fraud (Section 202.203). Filed within four years of death, the application may also ask the court whether an administration is needed at all (Section 202.006).
For a decedent's primary residence with a gross value up to the cap in Probate Code Section 13151 (stated as $750,000 and adjusted periodically), a successor may petition 40 days after death for an order that the property passed to them, without letters of administration, and must notify each heir and devisee within five business days. Once an estate is open, Section 11700 lets a claimant petition for a determination of who is entitled to distribution, and a surviving spouse can use a spousal property petition (Section 13650).
When property passes by intestacy and there is doubt about who takes or in what shares, any interested person may petition the court to determine beneficiaries, and a separate civil action is available when no estate was administered (Section 733.105). Summary administration is open when the estate is small or the decedent has been dead more than two years (Section 735.201). If a full estate needs opening, see probate petition drafting.
The Uniform Partition of Heirs Property Act (UPHPA) is a model law from the Uniform Law Commission that changes how courts handle a partition of family land. The Lincoln Institute counted 23 adopting states in 2025. Texas enacted it as Property Code Chapter 23A, effective September 1, 2017. Florida enacted it as Sections 64.201 to 64.214 for partition actions filed on or after July 1, 2020. California went further: its Partition of Real Property Act, CCP Section 874.311 and following, applies the same buyout and sale rules to all co-owned real property in actions filed on or after January 1, 2023.
Once the court finds the land is heirs property, the act controls unless all cotenants agree otherwise in a record (Texas Section 23A.003; Florida Section 64.203). The court values the land first. The heirs who did not ask for a sale can buy out those who did at that value times each seller's fraction, and the heir who asked for the sale cannot be the buyer (Section 23A.007(a)). If no buyout happens, the court must divide the land unless division would prejudice the cotenants as a group, weighing family ownership history, sentimental and ancestral attachment, current use, and who paid the taxes (Section 23A.009). Only then comes a sale, and it is an open-market listing through a broker at no less than the court's value unless sealed bids or an auction would be better (Section 23A.010).
| Issue | California | Texas | Florida |
|---|---|---|---|
| Heirs property partition statute | Partition of Real Property Act, CCP 874.311 to 874.323; covers all real property held in tenancy in common without a binding agreement, actions filed on or after Jan. 1, 2023 | Uniform Partition of Heirs' Property Act, Property Code ch. 23A, effective Sept. 1, 2017; only property meeting the heirs property definition (23A.002(5)) | Uniform Partition of Heirs Property Act, Sections 64.201 to 64.214, partition actions filed on or after July 1, 2020; other co-owners may opt in jointly (64.214) |
| Value first | Court determines fair market value before any buyout (874.316, 874.317) | Disinterested appraiser; court notice within 10 days after the appraisal is filed; 30 days to object; value set before the merits (23A.006) | Disinterested appraiser licensed in Florida; same notice and objection windows (64.206) |
| Buyout | Cotenants who did not request a sale have 45 days to elect to buy the sellers' shares (874.317) | 45 days to elect; price is the value times the seller's fraction; at least 60 days to pay (23A.007) | 45 days to elect, same price formula (64.207) |
| Division or sale | Partition in kind unless it causes great prejudice to the cotenants as a group (874.318, 874.319) | Partition in kind unless it causes substantial prejudice to the cotenants as a group (23A.008, 23A.009) | Partition in kind unless commissioners find prejudice to the cotenants as a group (64.208, 64.209) |
| Type of sale | Open-market sale through a licensed broker unless sealed bids or auction is more advantageous (874.320) | Open-market sale through a broker at no less than the court's value unless sealed bids or auction is better (23A.010) | Open-market sale through a Florida-licensed broker, same rule (64.210) |
| Heirship without full probate | Petition to determine succession to a primary residence, 40 days after death (Prob. Code 13151); spousal property petition (13650) | Proceeding to declare heirship, any time after death (Est. Code 202.0025); recorded affidavit is prima facie evidence after 5 years (203.001) | Determination of beneficiaries; separate civil action if no administration (733.105); summary administration after 2 years (735.201) |
Notice rules also change. If the plaintiff serves by publication and the land may be heirs property, Texas requires a sign posted on the property while the case is pending (Section 23A.004(b)), and Florida requires the notice of action to be posted on the property (Section 64.204(2)). Land in another state is drafted to that state's partition code, confirmed before work begins.
A clean sale of the whole property needs every owner's signature. When one heir lives there and will not leave, one will not answer, and one wants cash now, the family has three tools short of a trial. A buyout agreement prices the departing shares, usually from an appraisal, with credit for taxes and repairs one heir paid. A co-ownership agreement lets the family keep the land with written rules. Or the heirs who want to sell deed their shares to the ones who stay.
If none of that works, partition is the court's answer, and the uniform act shapes the strategy. An heir who files asking for a sale gives up the right to buy in the statutory buyout, and the remaining heirs get 45 days after the valuation notice to elect to buy. An heir who wants to keep the land should plead for partition in kind and build the record on the factors the court must weigh.
Taxes affect the numbers. Under Internal Revenue Code Section 1014(a)(1), heirs take a basis equal to fair market value at the date of death, so a sale near that value produces little taxable gain, and the price in a buyout agreement should reflect who has paid the property taxes and insurance since. Your tax professional handles the return; we put the numbers the family agrees on into the agreement.
For the lawsuit itself, including commissioners, referees, and the accounting between co-owners, see our partition action drafting page. If the fight is about a deed a relative recorded or a claim that one heir owns it all, see quiet title complaints, and if it has turned into a dispute inside an open estate, see probate litigation drafting.
No statute we read in California, Texas, or Florida sets a general deadline that forces heirs to retitle land, which is how a deed can name someone who died fifty years ago. But several clocks run in the background, and each one changes which paper you need.
A will generally cannot be admitted to probate after the fourth anniversary of death unless the applicant was not in default, and a good-faith buyer from the heirs after four years takes good title against a will offered later (Estates Code Section 256.003). A heirship proceeding has no deadline (Section 202.0025). A recorded affidavit gains prima facie weight after five years (Section 203.001).
A will does not prove title until it is admitted to probate (Section 733.103(1)). Summary administration opens when the decedent has been dead more than two years, whatever the estate's size (Section 735.201(2)).
The primary-residence petition is available once 40 days have passed since death (Probate Code Section 13151). The value cap, not the passage of time, decides whether that short route or a full probate is needed.
Heirs who sell or mortgage the land before notice to creditors is published within two years of death risk the deal being void as to creditors and the personal representative; after two years with no notice, those sales are valid as to them (G.S. 28A-17-12).
Every heir who dies before title is cleared adds a new set of owners, a new death certificate, and often a new state's law to the chain. A family with four heirs today can usually clear title by affidavit and deeds. The same family in twenty years may need a court proceeding with an attorney ad litem for heirs nobody can find.
Most families need two or three of these in sequence. We scope them together so the facts in the affidavit, the heirship application, and the deeds match line for line.
The sworn family history recorded in the county where the land sits: marriages, children, deceased heirs and their descendants, whether there was a will or administration, debts, and the property. Built on the Texas statutory form in Estates Code Section 203.002 where Texas law governs, and on the recordable equivalent elsewhere.
Use it whenThe family agrees on who the heirs are and wants a record before anyone sells.
A Texas application to declare heirship with every element Section 202.005 requires and the applicant's supporting affidavit (Section 202.007); a California petition to determine succession to a primary residence (Probate Code Section 13151) or a petition to determine persons entitled to distribution (Section 11700); or a Florida petition or civil action to determine beneficiaries (Section 733.105). Includes the proposed judgment or order.
Use it whenHeirs are missing or unknown, the family disagrees, or a title company wants a court order.
Deeds that move each departing heir's undivided interest into the heirs who keep the property, with the chain of inheritance recited so the next title examiner can follow it.
Use it whenThe heirs are established and some want to sell their shares to the others.
A written agreement among the co-owners covering occupancy, taxes and insurance, repairs, credit for what each has paid, a right of first refusal, and a buyout formula. Under the uniform act, an agreement in a record binding all the cotenants that governs partition takes the property outside the heirs property definition (Texas Section 23A.002(5)(A)), so we draft that clause on purpose, not by accident.
Use it whenThe family wants to keep the land together and stop the next partition fight before it starts.
The partition petition or complaint pleading the heirs property facts, the buyout election, objections to the court's appraisal, and the evidence on the partition-in-kind factors: years of family ownership, sentimental and ancestral attachment, current use, and who paid the taxes. The full partition service is on our partition page.
Use it whenA co-heir or investor has asked for a sale, or you need to ask the court to divide the land.
A suit to settle competing claims: a relative who recorded a deed to themselves, an old lien, a tax deed, or a claim of adverse possession by a family member who lived there for decades.
Use it whenSomeone claims more than the heirship facts give them.
Send the last deed, what you know of the family tree, and any court papers. We return scope and a delivery date in one business day, set against any deadline you face.
Legal Tank is a drafting service, not a law firm. We serve families clearing title themselves and attorneys who want the heirship application, deeds, or partition pleadings built for their review. The person whose name goes on the paper decides whether to sign it, record it, or file it.
Upload the last deed, the certificates you have, and any court papers through the secure matter portal. Tell us whether the family wants to keep, divide, or sell.
We trace each generation under the governing intestacy statute and compute every heir's undivided share, flagging missing heirs and any share already sold.
A written scope lists each paper: affidavit, heirship application, deeds, agreement, or partition pleading, in the order they need to be signed or filed.
Every paper cites the statute it relies on. You check the family facts line by line, because they are sworn, and we revise until they are right.
Affidavits and deeds are signed before a notary and recorded with the county clerk; petitions and pleadings are filed with the court.
Owner still living and want to stop heirs property from forming? See estate planning documents or a living trust. Need a simple deed between family members once the heirs are settled? See the quitclaim deed template. Is the estate small and mostly personal property? See the small estate affidavit. Is a relative contesting the will itself? See will contest drafting.
This page explains the statutes and what we draft. It is not legal or tax advice about your property, and Legal Tank does not represent you in court.
Send the last deed, the family tree as far as you know it, and what the family wants to do with the property. We return scope and a delivery date in one business day, and every paper comes back for the heirs or their counsel to sign, record, and file.
Quotes return same business day on intakes received before 5 PM ET
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