An Introduction to Heirship
Heirship proceedings enable the court to declare the heirs of a decedent who dies without leaving a Will or dies leaving a Will which fails to dispose of all of his property. The heirship also allocates the share of community property, separate real property, and separate personal property to which each heir is entitled. Though an heirship can be a stand-alone proceeding to pass title, it is most often accompanied by an administration of the estate.
Application to Determine Heirship
The first step in an heirship is to file an Application for Determination of Heirship. Those who may begin heirship proceedings must be an interested person and include:
- The personal representative of the decedent’s estate;
- A person claiming to be a creditor or the owner of a portion of the decedent’s estate;
- A person representing a person claiming ownership of a portion of the decedent’s estate as guardian or next friend;
- The guardian of an estate for a decedent who was a ward, so long as the proceeding is commenced and maintained in the probate court in which the proceedings for the guardianship of the estate were pending at the time of the decedent’s death;
- A party seeking the appointment of an independent administrator; or
- The Trustee of a trust holding assets for the benefit of a decedent.
An Application to Determine Heirship must include the decedent’s name, along with the date and place of decedent’s death. In addition, the Application must state the names and addresses of all heirs, as well as each heir’s relationship to the decedent and their interest in the estate. The Application must also delineate whether the decedent died testate, and if so, the disposition of the estate. Finally, the Application will include a general description of all property belonging to the estate or held in a trust, if applicable. Included with the Application must be a verification, signed by the applicant and notarized, stating that all information in the Application is true and correct and nothing has been omitted.
Attorney Ad Litem
The court shall appoint an Attorney Ad Litem in a proceeding to declare heirship to represent the interests of heirs whose names or locations are unknown. The court may expand the appointment of the Attorney Ad Litem to include representation of an incapacitated heir on a finding that the appointment is necessary to protect the interests of the heir. Proceedings to declare heirships most commonly result when a decedent dies intestate, but heirships may be also be used when a will fails to dispose of all property of the decedent or when a Trustee of a trust must determine the heirs of a deceased beneficiary. Though the attorney ad litem in an heirship represents unknown heirs and seemingly reports only to the court and his own conscience, he must represent such clients with tenacity and good judgment.
Service of Citation and Publication
After filing the Application, all known heirs must be served with citation through the clerk’s office by certified mail. Each heir must be served individually if they are 12 years of age or older. If an heir is younger than 12 years of age, the applicant may serve a parent or guardian of the child. If any heirs choose to waive service of citation, they may do so by filing a waiver with the clerk’s office and service will not be required.
Service by publication is required by law in an heirship so that any unknown heirs may be made aware of the proceedings. The applicant will publish a notice in a local newspaper or other publication in the county in which the proceedings are being held, and also the county in which the decedent last resided, if different.
Affidavit of Service and Citation
After each heir has been served or has filed a Waiver of Service of Citation, the applicant will file an Affidavit of Service of Citation with the clerk. Such Affidavit will state that the citation was served, the name of each person who was served, and the name of each person who has waived service.
The Affidavit will also include copies of all citations that were served and proof of delivery of service. This Affidavit is very important because the court cannot enter a Judgment Declaring Heirship until the Affidavit is filed.
After the above-listed documents have been accepted by the court, a hearing will be set for the court to determine heirship. For expediency, the court will often combine the heirship hearing with the hearing on the administration of the estate.
For the hearing, the Attorney Ad Litem will contact at least two disinterested witnesses, whose contact information your attorney provides to the Attorney Ad Litem. The witnesses must have personal knowledge of the heirs and family history of the decedent. The applicant’s attorney and the Attorney Ad Litem will question the witnesses at the hearing. After the testimony is complete, and provided the judge has the evidence to support a determination of heirship, the judge will enter a Judgment Declaring Heirship and discharge the Attorney Ad Litem. The applicant should be prepared to pay the Attorney Ad Litem his fees on the date of the hearing. Typical fees range between $500 and $1000.
Intestate Distribution in Texas—Special Rules
Intestate distribution plans are set out graphically in pages 12 and 13 herein. Set out below are special rules to keep in mind when determining the distribution plan of an intestate decedent.
Distribution When Child Predeceases Parent
In Texas, if some of the children predecease the intestate decedent and at least one child survives the intestate decedent, then each descendant of a child who predeceases the intestate decedent is entitled to a distribution of the intestate decedent’s estate. Each such descendant shares in only that portion of the property to which the parent through whom the descendant inherits would be entitled if that parent had survived the decedent. If all of an intestate decedent’s children predecease him, then the grandchildren of such decedent take equal shares.
Who is a Child under Texas Law?
In Texas, for purposes of inheritance, a child is the child of a biological father if: 1) the child is born under circumstances which create a presumption of paternity; 2) the child is adjudicated to be the child of the father by court decree; 3) the child was adopted by the child’s father; or 4) the father executed an acknowledgment of paternity. A child described above may inherit from and through his or her paternal kindred. Even if a child does not meet the criteria described above, he or she may petition the probate court for a determination of inheritance rights from a decedent.
In addition, Texas has long recognized the doctrine of adoption by estoppel. Modern Texas courts have held that a child’s knowing reliance on an agreement to adopt is unnecessary as the child’s belief in his or her status as a “child” is enough to support a claim of adoption by estoppel. A person claiming to be a child under the doctrine of adoption by estoppel inherits only from the decedent purporting to be the child’s parent and not through the parent.