Death is a very uncomfortable topic and one few of us want to dwell on. Yet, we need to have certain things in place for when the day comes in order to make a traumatic experience easier for our loved ones. Even though attorneys are constantly reminding people of the importance of wills and other legal documents, many people still avoid or simply ignore their advice. When you die without a will or other estate planning documents, it can lead to a lot of conflict between your loved ones and even family feuds.
Determining your heirs can be a taxing time and you will need the services of an excellent and experienced probate lawyer to navigate the process. On the other hand, if you die without a will (aka “intestate”), the court will have to determine who your heirs are and who has rightful claim to your property. This is what an heirship proceeding accomplishes. In Texas, this is an entirely different process than how a will is probated.
Section 48 of the Texas Probate Code applies in this case. Texas intestacy law states that “a probate court will rule on the question of heirship according to the law and without regard to the known wishes or preferences of the decedent.” In order to start the process of determining heirship, the estate needs to meet the following requirements:
- Someone has died without a will.
- That person owns real estate or property in Texas.
- There has been no administration of the estate or, if a will has been probated, real estate and property has been omitted from the will or was not dealt with.
If all the requirements have been met, you can start the process of determining heirship, detailed below:
1. Any parties interested in the estate of the decedent may file a proceeding to determine heirship before the court in the county where the real estate/property is located. This can be filed by the heirs, a secured creditor, or a qualified representative of the deceased, and needs to be done with the help of a probate attorney.
2. Any heirs who have a share in the property can initiate the filing with a probate court.
3. All the heirs of the deceased must receive notice of the proceedings. A probate attorney will also aid with notifications. This is very important, since any heir who did not receive a notice can have a judgment corrected up to four years after the judgment was made. They can also claim damages from all the heirs mentioned during the initial judgment.
4. All heirs must sign the application or must be served with the application.
5. Often, there are potentially unknown heirs, and the court will request that notices be posted at the courthouse as well as in newspapers.
6. Ensure that the application contains all pertinent information like the name of the deceased, date of death, names and addresses of all heirs, their relationship to distributees, as well as details regarding the real and personal property.
7. Every applicant must prove that the details in the application is correct and truthful. This can be done with written or oral testimony.
8. A judgment may be appealed within the same time limitations as other judgments in probate matters.
If you find yourself in a position where heirship needs to be determined, contact Goldsberry & Associates, PLLC for compassionate and experienced legal help.