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  September 04, 2018

Woman-asking- question_196543016Unfortunately, I get this call many times every day. If the property in the estate does not exceed the value of $75,000, not including the value of a homestead, a court proceeding called a “small estate affidavit” can sometimes be used. However, in most situations, this very simplified proceeding cannot be used. In those situations, there are generally are two options.

  • Application for Determination of Heirship (a court proceeding)
  • Non-court Involved Affidavit of Heirship

Which of these two options will be best varies with each situation, depending on the types of assets owned and the third parties who will be required to transfer the assets. Some third parties only will accept the court proceeding. Commonly, this could be brokerages and insurance companies. However, many third parties will accept the less expensive Affidavit of Heirship. Even title companies routinely accept an Affidavit of Heirship to transfer title to real estate unless there is a very large amount of money involved.

This is part one of What Do I Do If A Loved One Dies Without A Will? Here I will discuss the more formal application for determination of heirship.

Application for Determination of Heirship (a court proceeding)

What is the first step?

If you and your attorney have determined that it is safer to go the route of a court proceeding to establish how title to assets should pass from your loved one’s estate, this formal action will be required. You, all other heirs, and two independent witnesses who would not benefit from any inheritance must all swear to facts of family history determining who are the legal heirs under Texas laws of intestate succession (who inherits if there is no will). These facts will be set out in the pleadings filed with the probate court in the county where the deceased person lived. A filing fee has to be paid to begin this action.

Step Two

The most interesting requirement to this proceeding is that the court must appoint an “attorney ad litem” to represent interests of potential unknown heirs, and a notice to “unknown heirs” must be published in the newspaper where the probate is filed. This applies in every application, even though all sworn pleadings show there are no “unknown heirs.” Apparently, people have lied frequently enough in the past that the Texas legislature saw fit to make these requirements in every case. These two legal requirements add significant expense to the application to determine heirship proceeding.

The attorney ad litem will be required to research independently the facts of family history alleged in the pleadings. If the attorney ad litem is not satisfied with the completeness and truthfulness of the statements, the court is not likely to grant a determination of heirship until the attorney’s issues are resolved.

Step Three

The court will conduct a hearing at which testimony backing up the facts alleged in the pleadings must be presented. The applicant and a witness to the facts of heirship must appear. After the hearing, a summary of their testimony under oath must be filed with the clerk. If the court is satisfied with the proof, a detailed order determining heirship setting out the names of all the legal heirs and their interests in the estate will be issued. This order then is the authority for third parties to transfer property of the estate to the proper heirs. This should be sufficient documentation to allow the transfer of assets of the deceased.

Step Four

A certified copy of the application and order determining heirship should be recorded in the official public records in every county where the deceased owned real estate, other than the county of the court where the action was filed. The county where the action was filed automatically picks up the application and order in its official public records so additional filing is not required there.

In part two, of this blog, I will discuss the more informal “Affidavit of Heirship.”

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Wills & Trusts Legal Tips