TEXAS DETERMINATION OF HEIRSHIP

What is Determination Of Heirship?

A Determination Of Heirship is the legal process that an estate needs to go through if the decedent died without a will (“Intestate”) when there are questions about who the legal heirs are.

When is Determination Of Heirship Needed?

A Determination Of Heirship is needed when there is a dispute as to the identity of a decedent’s heirs. (Example: Common Law Spouses or Children out of Wedlock.) Sometimes a third party requires a court determination as to the heir before they pay out assets or insurance proceeds that belonged to the deceased.

Why would someone use a  Determination Of Heirship ?

A Determination Of Heirship is the only option left to move assets to a decendent’s heir, when it is determined that a Heirship Affidavit or a Small Estate Affidavit would be inappropriate.

Who can file for a  Determination Of Heirship ?

A proceeding to declare the heirs of a decedent may be commenced by:

1. the personal representative of the decedent’s estate;
2. a creditor of the decedent’s estate;
3. a person claiming to be the owner of all or part of the decedent’s estate; (e.i. an Heir)
4. a party seeking the appointment of an independent administrator.

Do I need an Ad Litem attorney for a Determination Of Heirship?

Yes, you have to. The court must appoint an attorney ad litem to represent the interests of heirs whose names or locations are unknown. Usually, the ad litem’s role in the heirship determination proceeding is limited, but it may be expanded by a court to include representation of an incapacitated heir.

Do I really need witnesses for a Determination Of Heirship?

Yes, you do. Texas law requires two (2) disinterested witnesses (a disinterested witness is someone who can attest to the facts of the case and who has no financial interest in the estate).

Do I need an attorney for a Determination Of Heirship?

Yes, you do. Under Texas law, people applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. Only licensed attorneys may represent someone else’s interests. Self-represented applicants may proceed in court only if they are really representing themselves alone.