What Is The Legal Process To Divide An Estate If There Is No Will?

Posted by: Adair M. Buckner

Families frequently come to me needing to know how to figure out who gets what when a loved one dies without a will. Unfortunately, the answer is that they may be in for a lot of expense and time in a very complicated legal proceeding.

family working on will

The legal process to spell out who are the heirs and what each of them is entitled to receive from the estate is called an Application For Determination Of Heirship (Application) or the more simple process Affidavit Of Heirship.

Informal Affidavit Of Heirship

Sometimes, if the estate is fairly simple and the family situation is straight forward, third parties will accept a more informal process in which court action is not necessary. The heirs can set out in an affidavit (sworn written document) the family history that supports their right to inherit. They will also have to provide two additional independent witnesses who verify those facts.

Many times, however, third parties will require the more formal court action of Application For Determination Of Heirship before agreeing to distribute assets.

Application For Determination Of Heirship

The court action in an Application requires the same information from the likely heirs of the deceased, the family history that supports inheritance rights under the Texas laws of intestacy (where a person dies without a will). Again, this information must be verified under oath and filed with the court. The applicant must also provide one or two independent witnesses to the facts. After the application has been filed, service of citation or a waiver of citation must be obtained for each heir. In a recent case I handled, there were 28 heirs, spread all over the world, and it took over 6 months to even identify and locate them all.

Attorney Ad Litem Appointment

A funny quirk of this procedure is that even though the family likely knows exactly who should be the heirs by law, the Texas Estates Code requires that an attorney ad litem be appointed to represent the interests of potential unknown heirs. That attorney then must question the heirs and independent witnesses. The attorney then reports to the court that he or she believes there are in fact no other heirs not named in the Application. This adds significant expense to the proceeding, as the attorney ad litem must be paid for his or her time spent.

Publication To Unknown Heirs

In addition, the applicant must have the court clerk publish a notice in the newspaper where the deceased lived, alerting potential unknown heirs that the application for the deceased has been filed. Then, if someone believes they are an heir, they must come forward and file a claim with the court. This again is an additional expense to the proceeding and the majority of the time yields no other heirs. This seems like a useless requirement because potential unknown heirs are not likely to live in the same city as the deceased, or to read the newspaper there.

Final Hearing And Order Determining Heirship

After all these steps have been taken and the attorney ad litem is satisfied that all heirs are before the court, a hearing will be held. The court will issue an order setting out the names, addresses, relationship to the deceased, and fractional interest legally belonging to each of the heirs. This order then serves as notice to third parties on how assets should be distributed. This would seem to be the logical end, but sometimes, third parties may also require that the court has appointed an administrator to deal with them on behalf of the whole group of heirs rather than dealing with each heir individually. If that happens, the Application has to be paired with a request for administration of the estate as well. This adds all of the complexity and expense which is normally involved in any estate administration, in addition to the cost of the Determination Of Heirship.

Next Steps

If you are in a situation where a loved one has passed away without a will, sadly, these are the steps you will need to go through. This points out the importance of doing estate planning before its too late.

If you would like to discuss either a determination of heirship for a deceased loved one (or if you still have time, their or your estate planning), please contact Adair M. Buckner for a free initial consultation*.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)



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