Death Without a Will in Texas - Heirship Proceedings

Robert Constantine Fafatas

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Litigation Lawyer

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Posted about 4 years ago. Applies to Montgomery County, TX, 3 helpful votes

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When a person dies without a will (http://rcfattorney.com/2011/07/dying-without-a-will-in-texas/)in Texas, it is usually necessary to begin an heirship proceeding (http://rcfattorney.com/practice-areas/conroe-woodlands-probate/). This is the process by which a probate court determines the heirs of an estate pursuant to Texas' descent and distribution laws.

Texas law determines the heirs of an estate when no will is left and also determines the distribution of the estate among those heirs. However, a court must be satisfied of the existence and identity of those heirs. In other words, a spouse, children, siblings or parents may be the heirs of an estate (in different circumstances), but the court must determine the identity of those persons and whether each have been notified of the proceeding. Unfortunately, it is not uncommon for one heir to attempt to take a greater portion of the estate by hiding the existence of another heir. Therefore, it these proceedings the court will appoint an attorney ad litem, whose job is to research the family and represent any heir that has not been disclosed.

Only after the attorney ad litem has completed the investigation and prepared a report for the court, will a final hearing declaring heirship be allowed. The fees for the attorney ad litem are typically paid from the estate or the heirs pay it directly. This is in addition to the fees paid to the applicant's attorney. These proceedings take time and additional expenses that are easily avoided when a proper will is drafted. Additionally, the laws of descent and distribution will control the distribution of the estate, regardless of what the heirs may claim was the decedent's intent. This can result in awkward and unfortunate results in some families. If the decedent dies as the result of an accident or other cause for which the family seeks to sue the responsible party in a wrongful death or survival suit, an heirship proceeding is required in order for the court to appoint a representative of the estate.

In any case, an heirship proceeding will ultimately provide the legal authority for the decedent's property to be sold or transferred, bank, retirement and investment accounts to be accessed and distributed and title to real property to be transferred, among other necessary actions. Again, proper planning will avoid the necessity of an heirship proceeding, among other benefits, but if a loved one dies without a will, an heirship proceeding is likely necessary.

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Fafatas Law Firm, PLLC

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