Heirship Proceedings in Texas Probate
Overview of Heirship Proceedings
They say hindsight is 20/20. For individuals who are left to handle the estate of a loved one without a Last Will & Testament, referred to in Texas as an intestate estate, they often find themselves wishing they had predicted the future and could have helped their loved one plan better.
What are heirship proceedings?
Heirship proceedings are a court proceeding used to determine who the last known heirs of a deceased are when the deceased does not have a Last Will & Testament and owns property in the state of Texas. This is known as an intestate estate or intestate succession under Texas probate law. The distribution of the estate follows Texas law on intestacy. An heirship proceeding may also be necessary if your loved one left behind a Last Will & Testament that did not dispose of all assets owned by the estate. This is known as partial intestacy. While it may seem like a simple task for many families to name who the heirs of an estate are, it is not quite so simple under the Texas Estates Code.
What happens in an heirship proceeding?
Heirship proceedings start with the filing by the Applicant, who is the person seeking to have the court determine heirship, of an Application to Determine Heirship. The Application to Determine Heirship is filed with the county clerk in the county in which the deceased live in at the time of death or owned real property in. If no real property was owned, it is filed in the county where the decedent owned personal property. Many times, the Application to Determine Heirship is filed with an Application for Letters of Administration.
Upon filing an Application to Determine Heirship, all known heirs must be served in accordance with the Texas Estates Code or file waivers of service. Notice to the unknown heirs will be published in a newspaper in the county the case is filed in and the court will also post a citation at the courthouse. This citation is posted to help notify any unknown heirs or creditors of the estate who may have a legal interest in the estate. To determine who the heirs of the deceased are, the court will also appoint an attorney ad litem to locate the unknown heirs. This is required even if you believe you know who all of the heirs are and they all file waivers of service. It is a trusted position meant to assist the court who does not know who all of the heirs are.
After the attorney ad litem completes their investigation and notice to the unknown heirs has been posted for the required length of time, the heirship proceeding will be set for a hearing with the court. Two disinterested witnesses may need to testify in court about the identity of the deceased individual’s heirs. In some courts, a deposition on written questions may be taken on the two disinterested witnesses who do not reside in the area, or are not available, and filed with the court.
What does the attorney ad litem do?
The attorney ad litem is appointed to represent the unknown heirs, and the interest of the unknown heirs, whomever they may be. They are required to discuss the family history with the party filing the Application to Determine Heirship along with other non-interested parties. A non-interested party is a person who is not an heir of the deceased and does not have any interest in the estate. The attorney ad litem appointed for the unknown heirs may ask to review several documents, such as birth records, marriage certificates, and divorce decrees of the deceased. It is their job to “shake every tree” so the court will have all the information necessary to make a determination of who the heirs of the deceased are. The fees of the attorney ad litem are paid by the estate.
What happens at the court hearing on the Application to Determine Heirship?
At the court hearing, the Applicant will appear along with the Applicant’s probate attorney, the attorney ad litem for the unknown heirs, and the two disinterested witnesses. The two disinterested witnesses will give testimony under oath about the deceased heir’s and their lack of knowledge of any Last Will & Testament left by the deceased. The attorney ad litem will testify about what was discovered during the investigation into any unknown heirs. The Applicant will also testify to prove up the Application to Determine Heirship and the Application for Letters of Administration if filed with the Application to Determine Heirship. The court will then determine who the unknown heirs are. If the court approves of the Applicant’s Application for Letters of Administration, the court will also grant Letters of Administration to the Applicant. The Applicant will then be required to take an oath and file a bond with the court in the amount required by the court, unless the bond is waived by all heirs of the estate. Once the bond is filed and approved, the Applicant will be able to request Letters of Administration to administer the estate.
What are my first steps?
You first need to talk with a Texas probate attorney in your area about how your county handles administration of an estate. Contact ML|MW at (281) 582-1296 and schedule your free and confidential consultation to discuss the specific facts of your probate in Houston, Texas, or your probate in Sugar Land, Texas, and see what probate solution is the best option for probating your loved one’s estate.