Determination of Heirship

A determination of heirship is a legal proceeding in the probate court, where the Judge determines who are the heirs of a decedent.

When is a Determination of Heirship Necessary?

It is necessary when the decedent didn’t leave a valid will.

The State of Texas has laws of descent and distribution that set out the heirs of someone who dies without a will. The Judge must hear evidence as to a person’s family history to determine his heirs.

Determination of Heirship Process

The legal procedure starts with a sworn application from a person claiming to be an heir or otherwise having a legal interest in a decedent’s estate. 

After the application is filed there are three different sets of notices that are required. First, the clerk of the court will prepare a notice that is posted at the courthouse. Second, there is a notice prepared by the clerk of the court that the applicant must publish in a local newspaper. Third, the heirs must receive notice by being served with notice or sign a form waiving their right to notice.

The Court will appoint an attorney ad litem to represent unknown heirs. Basically the attorney ad litem’s role is to check the accuracy of the listing of heirs in the application to make sure that no heir has been omitted, and to give a report to court of their findings.

A hearing is required before the Judge and testimony is required from two witnesses who knew the decedent well. The witnesses must have no interest in the estate either as an heir or a creditor.

If two witnesses cannot be located it may be necessary to hire a forensic genealogist to do an investigation and testify as to the decedent’s family history.

At the conclusion of the hearing the court will sign a judgment identifying the heirs and setting out the heirs share of the estate.

Understanding Community vs. Separate Property

Property passes differently depending on whether it is community or separate property and real or personal property.

Community property, generally speaking, is property acquired during marriage out of earnings and income from separate property.

Separate property is property owned before marriage or acquired by will, inheritance or gift.

Property is presumed to be community property unless it is proven by clear and convincing evidence that it is separate property.

In a determination of heirship proceeding the court will not rule as to the status of any particular property as community or separate but will just set out the general rules that apply under the facts of the particular case.

Under Texas law, if a person is married but has at least one child who is not his spouse’s child, then the children of the decedent inherit his separate property.  

It is always advisable to have will, but even more so in these circumstances.

In addition to a judgment declaring heirship, it is usually advisable to have a court created administration of the estate.

Work With Experienced Texas Probate Attorneys

Navigating a determination of heirship can be complex, especially when no will is in place and multiple heirs are involved. At Hammerle Finley Law Firm, our experienced probate attorneys are here to guide you through each step of the process with clarity and confidence. Schedule a consultation today to discuss your situation.