When someone dies, he or she may not leave a will. Obviously, proper estate planning would have involved the creation of a last will and testament, but not everyone complies with this best practice. In this blog post, Dallas attorney Marisol Trottier explains ‘proceeding to determine heirship,’ which is what happens if the heirs to an estate are not self-evident.
When a loved one dies in the State of Texas without a will, there are only a few alternatives available to family members. One is an Application to the Determine Heirship.
In this court proceeding, the applicant can be an individual claiming to be the owner of a portion of the estate, a secured creditor, a guardian of the estate, certain trustees, or, in the case of partial intestacy, a personal representative of the estate of the Decedent (the person who has died).
The application requires that certain information be provided to the court. For example, the applicant must disclose the family and marital history of the decedent. The application must also identify any children or other potential heirs of the decedent. The application must provide very specific concerning the heirs, such as their age and their interest in the estate (the respective percentages and whether their interest is separate or community property).
There are also strict notice requirements that must be met. For example, the law requires that the applicant give notice to all heirs who are 12 or older. The court appoints an “attorney ad litem” to represent any unknown or incapacitated heir.
In the hearing, the presiding judge will consider the application and all the evidence. If the Judge is persuaded that the applicant has met his burden of proof, the judge will sign an order that states who are the heirs at law and describes each heir’s respective share and interest.
Often, this procedure is combined with an application for administration that will result in the issuance of Letters of Administration. This is a topic that will be covered in a subsequent posting.
If you would like to hear more information concerning the proceeding to determine heirship, please contact the attorneys at B&R for an initial phone consultation.
In the best of circumstances, anyone who has significant assets should work with a trained legal professional to set up a last will and testament as well as a trust, or so-called “living will.” If someone dies and the ownership of assets of the estate is ambiguous, it may be necessary to go to the Court for clarification. If you or someone you love is facing this type of ambiguity up to and including probate under Texas law, please reach out to a probate attorney for a consultation. Every situation is unique.