Replies to This Discussion

Permalink Reply by HBP on March 1, 2012 at 3:49

Multiple can be fine, but it may need to be filed in multiple parishes depending on each property description. 

If you are trying to cure or link a portion of your title by way of this affidavit, I would consult an OnG attorney so you can ensure what you record achieves your objective.  I see alot of homegrown affidavits that end up having to be corrected later on or  just stay on file and cause some more confusion than clarity in title.

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Permalink Reply by Two Dogs, Pirate on March 1, 2012 at 13:20

You can do a affidavit of heirship without linking it to property.

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Permalink Reply by Ken Boone on March 1, 2012 at 14:52

So, an affidavit can be general, and not specific to a particular property?

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Permalink Reply by Joseph Cartwright on March 1, 2012 at 16:39

An affidavit can be general and just say "all property owned by the decedent"; it should be filed where the decedent was residing at time of death. Also some recording officials file it in probate records and some in general deeds and records. File it wherever you think someone will be looking for it-can be filed in multiple counties or parishes.

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Permalink Reply by Two Dogs, Pirate on March 2, 2012 at 14:57

Yes, many folks die and don't own property  at the time of their death but their estate could acquire interests in other relatives or other folks property after their death. Think of the long lost billionaire uncle that died and left you with 1% of his estate and you died one day before he did.

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Permalink Reply by Dion Warr, CPL on March 2, 2012 at 9:28

Ken:

 

This ends up being more of a curative problem which is originally pointed out by an oil company or a timber company, although it can come about from any transaction involving ownership of immovable property, or severance of an asset or purchase from immovable property (e.g., oil and gas, timber).  Usually the acquiring company performs due diligence which reveals a defect in the title, namely  a break in the chain of ownership due to a death of one of the ancestors in title.  The company is merely trying to clear up their own title requirement; thus only the property with which the purchaser is concerned is listed, sometimes with the purported ownership of decedent listed as best as said company understands it.  This type of affidavit can make it virtually ineffective as to any other property of decedent (since it is very specific, and does not take into account any other ownership in any other property which may have been part of the personal inventory of decedent.

 

As far as affidavits: I totally agree with HBP on this issue.  Common mistakes with "homespun" affidavits which list properties of deceased individuals include:

Mischaracterizing ownership of property per law (community vs. separate, undivided interest vs. entire interest, etc.).

Mischaracterizing testamentary status of decedent (intentionally or unintentionally)

Inclusion (or exclusion) of properties owned by decedent, which requires subsequent amendment(s) of the inventory.

Determination of the ownership of immovable property (even severed minerals and royalties) is a matter of law.  I can't tell you how many times I have run across major differences in vested legal ownership versus an heir's determination of ownership based upon their own notions of property ownership.  Unfortunately, oil and gas companies must rely upon legal determination of ownership, and not just upon collective familial notion, instinctive conclusions, or conjecture of an heir; if they do - they do so with cognizance of the business risk, or at their own peril.

 

These problems even come up with properly opened (and discharged successions) in which the attorney relies upon the heir(s) (or executor) to assist with providing an inventory, which is left unintentionally incomplete.  The most common type of omission is the severed mineral and/or royalty right - no surface, nothing to confirm at the assessor's office, and so these get missed.

 

Some of the perils of my job include having to break this news to heirs and successors - the concept of legal determination vs. "what is right" or "what Daddy wanted".  Some of the more "fun" discussion topics I've had to deal with over my career:

 

"We were to each have a forty, but the minerals were supposed to STAY undivided" (but prescription had extinguished a portion of a mineral servitude due to inactivity)

"Mama was supposed to have a usufruct in everything" (even in 'future wells', when this well was drilled, or deepened, well after Daddy had passed away)

"I don't see how those 'other kids' have any interest" (when a spouse in community had married more than once, and had children with another spouse)

"Well, 'so-and-so' [moved away, maybe?] doesn't count" (Purportedly disinherited children that were not formally disinherited, and/or no will to substantiate the claim)

"[Everyone knows that] that was FAMILY property" (Family member buys out other family members for real consideration while married, with no declaration or spousal acknowledgment of separate property)

 

So, advice:

Do a succession.  It costs money, but then its done.  In any event, it's one less headache to pass on to your heirs.  (Or me.)

Discuss estate planning with your family, an estate planner, and an attorney.  Then put it in writing.  You never know when someone might show wanting to pay you thousands of dollars per acre in bonus money, but their time window is short and your title is a mess.  LOL

When in doubt, and a company is requesting an affidavit of death and heirship, try to be as informed and as truthful as you can.  When in doubt, try to have the person doing the title curative be as general as possible as to property, and not be tied to a specific tract.  Also, try to have a familiar person (family friend, longtime business associate, or even aunt/uncle/cousin) that has known the family for a great deal of time but not a beneficiary of the decedent (like a child, for instance) do an affidavit if at all possible.  Many attorneys look at "self-serving" affidavits with a rather jaundiced eye.

 

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Permalink Reply by Jan Childress on March 8, 2012 at 19:36

I had Form 53-111-A, Affidavit of Heirship, completed for my Dad's estate but we didn't list any property on the form.  

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