Heirship Determination Attorney

There two main scenarios in which a Determination of Heirship (also known as a Proceeding to Declare Heirship) becomes necessary are:

  1. The decedent died "intestate," meaning without having left a valid Will; and,
  2. The decedent's Will was not probated within four years after death (in which case the Will no longer is valid).

Requirements

An application can be filed with the court by an heir, guardian, creditor or other interested person.  The application includes four important categories of information:

  1. A description of the decedent's marital and family history (i.e. the known heirs, who must be served with notice of the proceeding);
  2. A description of the decedent's separate and community property, including both real property (e.g. house/land) and personal property (e.g. cars, furnishings, money);
  3. A listing of the percentage of the decedent's separate and community property, both real and personal, that each known heir will receive (assuming no unknown heirs are identified) with the percentages determined by Texas law; and,
  4. Identification of at least two credible, disinterested witnesses who can testify to the decedent's marital and family history; a disinterested witness can be a long-time friend or family member, but they must be someone who will not "take" property as a result of the proceeding.

Next, an Attorney Ad Litem must be appointed by the court to represent the interests of potential "unknown heirs."  The Attorney Ad Litem will interview the disinterested witnesses and perhaps other persons who have the similar knowledge before filing a report with the court.  If no previously unknown heirs are discovered during the Attorney Ad Litem's investigation, the next step is the heirship hearing in court.

Estate Administration May Be Required

The application for a Determination of Heirship may or may not need to be accompanied by an Application for administration of the estate.  An example of when an application for administration of the estate might not be required is when the only issue is resolving title to real property. 

If administration of the estate is required, then the application will be for either an Independent of Dependent Administration.  Whether an Independent Administration (meaning, a probate administration largely free of court supervision) is permitted will depend on the nature and extent of the deceased’s property and debts—and consent by all heirs to an Independent Administration.  If, for example, the estate is insolvent (meaning it cannot pay all debts) or consent to an Independent Administration cannot be achieved, then a Dependent Administration will most likely be required. 

Transferring Title to Real Estate

If administration of the estate is not required (e.g. only title to real estate needs to be transferred), then the court’s order gets recorded in the county’s real property records and serves as constructive notice of the title transfer.  If administration of the estate is required, then title to real estate will be transferred by the Administrator in due course of Independent or Dependent Administration.

How Long It Takes

If a Determination of Heirship is not combined with administration of the estate, then the process can take as little as two months.  If combined with an Independent Administration or Dependent Administration, then the total process usually runs 10-18 months.

Our Firm’s Guiding Hand

Our firm handles all aspects required in a Determination of Heirship.  If necessary, we will guide you from the Determination of Heirship into either an Independent or Dependent Administration.  In sum, we will be at your side with advice and counsel each step of the way.  Call today to speak with our probate attorney.


The Cramp Law Firm is located in San Antonio, Texas and assists clients throughout Bexar, Comal, Guadalupe and Kendall counties.



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Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: (210) 819-5052

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