When someone dies intestate, without a will, it is sometimes necessary to determine heirship through a judicial proceeding in a probate court. For example, banks and insurance companies may need to have proof of heirship before releasing the decedent’s assets. The Texas Estates Code outlines who will inherit the estate and how it will be divided. To establish heirship, the court usually appoints an Attorney Ad Litem to investigate family history and identify heirs. The court may also appoint an administrator to marshal all assets and distribute the estate.
How Heirship Is Determined
Tex. Est. Code Ch. 201 determines heirship by applying the laws of descent and distribution to the family history of the decedent. While determining heirship clarifies who is a rightful heir, it does not determine whether the estate has any assets. A question like that is resolved by an inventory and appraisement administered by the estate. Tex. Est. Code § 309.051. Heirship also does not define which property is community property and which is separate. It does not focus on disclaimers, assignments, or settlement agreements about property made by heirs. If such property issues exist, filing a suit for declaratory relief is the best way to inform the court of these issues and their effect on descent and distribution. Tex. Civ. Prac. & Rem. Code Ch. 39.
Application for Heirship
The first step in the process of determining heirship is to submit a written document to the court which asks for an order identifying the heirs of an estate. Tex. Est. Code §§ 202.005. However, only certain people are actually authorized to file the application: the decedent’s personal representative, someone claiming all or part of the inheritance, a creditor of the estate, the guardian of the estate, a person wanting an independent administrator (Section 401.003), or the trustee of a trust holding assets for the decedent’s benefit.
As outlined in Tex. Est. Code § 202.005, requirements of the Application are
- the decedent's name and date and place of death,
- the names and physical addresses where service can be had of the decedent's heirs, the relationship of each heir to the decedent, whether each heir is an adult or minor, and the true interest of the applicant and each of the heirs in the decedent's estate or in the trust, as applicable,
- if the date or place of the decedent's death or the name or physical address where service can be had of an heir is not definitely known to the applicant, all the material facts and circumstances with respect to which the applicant has knowledge and information that might reasonably tend to show the date or place of the decedent's death or the name or physical address where service can be had of the heir,
- a statement that all children born to or adopted by the decedent have been listed,
- a statement that each of the decedent's marriages has been listed with a). the date of the marriage, b). the name of the spouse, c). the date and place of termination if the marriage was terminated, and d). other facts to show whether a spouse has had an interest in the decedent's property, e). whether the decedent died testate and, if so, what disposition has been made of the will,
- a general description of all property belonging to the decedent's estate or held in trust for the benefit of the decedent, as applicable, and
- an explanation for the omission from the application of any of the information required by this section.
The Role of the Attorney Ad Litem
If a person dies intestate, an Attorney Ad Litem is appointed to investigate and determine the decedent’s family members at the time of death, including finding any previously unknown heirs. Tex. St. Code § 202.009.
Due diligence by the Attorney Ad Litem includes the following: reviewing all documents related to the heirship, interviewing those involved with the case to verify facts about heirship, determining heirship based on complete evidence, writing a report that states whether or not the Ad Litem agrees with the heirs identified in the application, and creating a distribution chart and outline of the documents used to determine the Ad Litem’s opinion.
Because of the time and effort involved, applicants are often asked to make a deposit, usually about $500, to compensate the work of the Attorney Ad Litem. Once the Ad Litem presents the required information at the hearing, the court issues an order discharging the Ad Litem and awarding him or her any fees. Tex. Govt. Code Ch. 36.
Relevant evidence about heirship is presented at a hearing held in open court with counsel, applicant, and witnesses present. Evidence can be in the form of written or live testimony. Two witnesses who will not profit from their statements testify declaring the heirs of the decedent’s estate.
The judge ensures that all testimony accurately identifies the heirs of the estate. If details of the decedent’s death are not available, Tex. Civ. Prac. & Rem Code § 133.001 states that the date and place of death can be proven by circumstantial evidence and pronounced during the application to determine heirship. The judge will then sign an order which determines heirship and includes the names of the heirs, the share and interest they’ll receive, and whether the evidence presented is in any way lacking. Tex. Est. Code § 202.201. This order is a final judgement in the case.
Depending on the case, determining heirship can be quite simple or extremely complex. Consulting an attorney familiar with the complexities of probate law in Texas will help a grieving family successfully navigate the challenges of determining heirship.
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