An affidavit of death in Texas is a sworn, notarized statement filed with the county clerk to record that a property owner has died. It clears the deceased person’s name off the county’s real property records so a surviving co-owner, spouse, or beneficiary can sell, refinance, or otherwise deal with the property. Until it is on file, title companies and lenders will still treat the deceased as a current owner, and that alone can stall a sale or a loan.
When You Need to File One
The trigger is almost always real estate. If the deceased co-owned a house or land in Texas, or had signed a transfer on death deed, the affidavit is the standard way to update the title. It works cleanly when the property was held with a right of survivorship or passes under a recorded transfer on death deed, because in those cases ownership already shifted by operation of law and the filing simply catches the public record up.
The affidavit by itself does not transfer property that has to pass through the estate. If the deceased owned a tenancy-in-common share, or held property individually with no survivorship arrangement or transfer on death deed, filing an affidavit of death only documents the death. Moving title in those cases takes probate, an affidavit of heirship, or a small estate affidavit.
What the Affidavit Must Contain
The document has to identify the deceased and the property precisely enough that a title examiner can match it to the recorded deed. Include:
- The deceased’s full legal name exactly as it appears on the recorded deed or transfer on death deed.
- Date of birth and date of death, with the city, county, and state where the death occurred.
- The legal description of the property: lot, block, subdivision, or metes and bounds, taken directly from the property records.
- A reference to the recorded instrument connecting the deceased to the property, by volume and page or document number.
The person signing, called the affiant, has to have direct knowledge of the death. That is usually a surviving spouse, an adult child, or another person with a legitimate interest in the estate. The affiant swears under penalty of perjury that the statements are true, and that oath is what gives the document its legal weight.
Plan on providing a certified copy of the death certificate along with the affidavit. Title companies want to see it before they will insure a sale or accept the property as collateral. Some will accept an obituary in a pinch, but a certified death certificate is the standard.
Notarization Is Not Optional
Every affidavit of death has to be notarized. A commissioned Texas notary administers the oath and confirms the affiant’s identity. Under Texas Government Code Section 406.014, acceptable identification includes a government-issued photo ID or a U.S. passport, and personal knowledge of the affiant is also allowed if the notary records that method.1State of Texas. Texas Government Code Chapter 406 – Notary Public
Texas notaries also have to keep a record book with the date, the signer’s name and mailing address, and the form of identification used, and hold onto those records for at least ten years.1State of Texas. Texas Government Code Chapter 406 – Notary Public That paper trail matters if the affidavit is ever challenged.
Before you leave the notary’s office, look at the document. The seal, signature, and commission expiration date all need to be there. A clerk will reject an unnotarized or improperly notarized affidavit outright, and you will have to start over. Witnesses are not required by Texas law, but some title companies ask for one, and adding a witness can smooth the review later.
Where to File and What It Costs
File with the county clerk in the county where the property sits, not where the deceased lived or died. If the deceased owned property in Harris County but lived in Travis County, the filing goes to Harris County. If the property is spread across counties, each county needs its own filing.
Bring the original notarized affidavit, at least one copy, and typically an original or certified copy of the death certificate. The paper has to meet the formatting rules in Texas Local Government Code Section 191.007: at least 8½ by 11 inches, not permanently attached to other materials, and legible.2State of Texas. Texas Local Government Code Chapter 191 – Records and Papers of County Anything else gets kicked back at the counter.
Recording fees come from Texas Local Government Code Section 118.011, which sets a base rate of $5 for the first page and $4 for each additional page, with mandatory county surcharges on top.3State of Texas. Texas Local Government Code Chapter 118 – Fees Charged by County Officers In practice, expect roughly $25 to $50 for a standard filing. Call the clerk in advance to confirm the exact amount and what forms of payment they accept.
How Ownership Type Changes What Happens Next
The affidavit’s effect depends entirely on how the deceased held title. This is where mistakes get expensive.
Joint Tenancy With Right of Survivorship
When property was held as joint tenants with right of survivorship, the surviving co-owner becomes the sole owner at the moment of death. The affidavit just updates the record. No probate.
Community Property With Right of Survivorship
Under Texas Estates Code Chapter 112, married couples can sign a community property survivorship agreement so that all or part of their community property passes to the surviving spouse on death.4State of Texas. Texas Estates Code Chapter 112 – Community Property With Right of Survivorship If that agreement is in place and recorded, the affidavit of death paired with it gives the title company what it needs.
Without a survivorship agreement, community property does not pass automatically to the surviving spouse. It becomes part of the deceased spouse’s estate and may need to go through probate. Many Texas families are surprised by that.
Transfer on Death Deed
A transfer on death deed lets an owner name a beneficiary who receives the property at death, outside probate. Under Texas Estates Code Chapter 114, the deed has to be recorded in the county clerk’s office before the owner dies to be effective.5State of Texas. Texas Estates Code Chapter 114 – Transfer on Death Deed After the death, the beneficiary files an affidavit of death to complete the transfer. If the deed was never recorded during the owner’s life, it has no effect and the property falls into the estate.
Tenancy in Common
Tenancy in common does not carry a survivorship right. The deceased owner’s share becomes part of the estate. An affidavit of death documents the fact of death but cannot move that share to anyone. You will need probate or an affidavit of heirship to establish who now owns the share.
Mistakes That Cause Rejections and Title Problems
The most frequent problem is a name mismatch. If the recorded deed says “Robert J. Smith” and the affidavit says “Bob Smith,” the clerk may accept the filing, but a title examiner will flag it later. Use the name exactly as it appears on the property records, and add an “also known as” statement if the death certificate uses a different form.
Errors in the legal description are just as damaging. A wrong lot number, a transposed digit, or an incomplete metes-and-bounds description can create a title defect that has to be fixed with a corrective filing or a court order. Copy the legal description straight from the most recent recorded deed.
Filing in the wrong county is another one. Property records are kept at the county level, so an affidavit filed in the wrong county never appears in the right chain of title. If the deceased owned property in more than one Texas county, each county needs its own filing.
And skipping or botching the notarization voids the whole document for recording. Check the seal, signature, and commission expiration date before you leave.
When a Different Document Is the Right Tool
An affidavit of death and an affidavit of heirship are not the same. The first establishes the death. The second identifies who the legal heirs are and establishes their right to inherit.
Under Texas Estates Code Chapter 203, a recorded affidavit of heirship serves as prima facie evidence of heirship in court proceedings after it has been on file for five years.6State of Texas. Texas Estates Code Chapter 203 – Nonjudicial Evidence of Heirship It requires two disinterested witnesses who can confirm the deceased’s family history, marital status, and the identity of heirs. It does not transfer title on its own; it creates a presumption of ownership that grows stronger with time. Many title companies impose a one- to two-year waiting period before they will rely on one.
A small estate affidavit is another option with tight limits. Under Texas Estates Code Section 205.001, the deceased must have died without a will, and the estate value excluding homestead and exempt property cannot exceed $75,000.6State of Texas. Texas Estates Code Chapter 203 – Nonjudicial Evidence of Heirship It can move financial accounts and homestead property but not other real estate. It also needs two disinterested witnesses and gets filed with the probate court, not the county clerk.
The short version: for property held with a right of survivorship or under a recorded transfer on death deed, an affidavit of death is usually enough. For property that has to pass by intestate succession or through the estate, you are looking at an affidavit of heirship or formal probate.
Tax Basis After the Transfer
Once the property changes hands, the IRS resets its tax basis to the fair market value on the date of death. This is the stepped-up basis, and it matters when the heir eventually sells. If the deceased bought a house for $150,000 and it was worth $400,000 at death, the heir’s basis becomes $400,000, so a sale at $410,000 produces only $10,000 in taxable gain instead of $260,000.7Internal Revenue Service. Gifts and Inheritances
If the estate is large enough to require a federal estate tax return (Form 706), the heir may have to report a basis consistent with the value on that return. Reporting a higher basis than the estate tax value can bring an accuracy-related penalty.7Internal Revenue Service. Gifts and Inheritances Texas does not impose a state estate or inheritance tax, so for most families the federal rules are the only ones to plan around.