What is Involved in a Texas Heirship Proceeding?

James Brian Thomas

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Probate Attorney - Dallas, TX

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Posted over 2 years ago. Applies to Texas, 1 helpful vote

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1

An Application is Filed

Whether brought before, after, or with an Application to create an administration, every heirship proceeding in Texas begins with the filing of an Application. That Application must allege several very important facts. Most importantly, the Application must contain specific allegations related directly to the Decedent, their marital status and the names, ages and locations of their family. In many cases, the Application serves as something of a family tree, as it might list predeceased parents, siblings or children. The point of the allegations is to apply the default statutory scheme of descent and distribution, and the result should be an accurate listing of those individuals believed to be the Decedent's rightful heirs.

2

Notice is Given

Few things happen in our courts without notice to interested parties. Heirships are no different. Even though the Applicant and the listed heirs might all be fully aware of the Application, the Court must be satisfied that the procedural rules regarding notice have been followed. For those known heirs, achieving notice might be simple. A Waiver or similar document might be signed and filed. As an added precaution, Texas law also imposes an obligation of publishing notice of the Application's Citation. What is quite literally a legal advertisement must be published in a county newspaper to "advise the world" of the Application for heirship, so that anyone that believes they have an interest in the Estate can come forward.

3

An Attorney ad Litem is Appointed

Even with all of the notice requirements, the Court cannot simply take the allegations in the Application for granted. When the Court appoints an Attorney ad Litem, it is appointing an attorney to represent any unknown heirs, and those heirs operating under some legal disability. The ad Litem's role is to act as advocate for those individuals, and in many cases, doing so means that this appointed attorney eventually proves that their clients do not exist. But, in many cases, through communication with the Applicant and those with knowledge of the Decedent, additional heirs are sometimes discovered.

4

A Hearing is Held

Everything comes down to the Applicant's ability to prove to the Court that the individuals listed in the Application are, in fact, the heirs of the Decedent. The Court will hear the testimony of the Applicant, as well as the testimony from two or three individuals familiar with the Decedent. These individuals, commonly referred to as "disinterested witnesses," must have no financial interest in the Decedent's Estate. With no financial interest, and nothing to gain from their testimony, the Court feels satisfied that they are far less likely to shade the truth or favor themselves. At the conclusion of the hearing, a Judgment is signed. This Judgment confers the specific rights to the Decedent's property to the proven heirs.

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