Why Do I Need a Judicial Determination of Heirship?
When a person dies without a Will, also known as dying intestate, there may be a question about who the rightful heirs of the deceased person's estate actually are. You would think that knowing who someone's children, spouse, or parents are, should be fairly easy. And it might be. However, there are times and situations where answers to the question, “Who should inherit?” may not be as straightforward. The courts will not make assumptions about which heirs should inherit from the estate and many institutions, like banks or insurance companies will not either, so money or assets may remain trapped in limbo.
There may be disputes among family members as to what people qualify as heirs. When someone is adopted into or out of a family their existence is typically known by at least one person in the family, but should the adopted child inherit? When someone dies with no will, no spouse, no children, and no parents, what siblings are still living? Did those siblings have children who should inherit? Did siblings that died earlier than the deceased have children that should inherit? Are all the children naturally-born, or are they step-children? Should they inherit?
The Judicial Determination of Heirship will help with the answers to these questions and others as you try to work through the estate of a loved one or friend.
What is a Judicial Determination of Heirship?
A judicial determination of heirship is a court procedure that validates or declares the deceased person's heirs for purposes of inheriting from the estate. In some cases, it also involves the appointment of an independent administrator to make sure everyone who is an heir receives their correct portion of the estate. Unfortunately, a judicial determination of heirship is a fairly expensive and time-consuming procedure, since there are many boxes that have to be checked before the estate can be distributed when your loved one left no written plan.
How Are Heirs Determined by the Judge?
In Texas, to determine the rightful heirs for an estate, any potential heir, a personal representative of the estate, someone seeking appointment as an independent administrator of the estate, or a secured creditor may file an application to determine heirship with the probate court.
After the relevant party files the application to determine heirship, the court appoints an attorney to investigate the deceased person's family history. This attorney is known as either an attorney-ad-litem or as a guardian-ad-litem depending on the area in which you are located, and this attorney serves as an independent investigator. The investigation includes looking into the deceased person's dating and marital history, interviewing witnesses, and reviewing essential documents to identify known and mostly unknown heirs, like children that may have been born to or adopted by the deceased. Potential witnesses include family members, neighbors, co-workers and others who knew the deceased, and essential documents include birth certificates, marriage licenses, divorce decrees, and death certificates.
Generally, the job of the attorney-ad-litem is to identify any heirs that may be unknown to the person requesting a judicial determination of heirship. Although, the court may also appoint an attorney-ad-litem to represent known heirs who have no legal capacity to apply for probate or participate in the process, like underage nieces or nephews.
In addition to appointing the attorney-ad-litem, the Probate Code also requires that the applicant notify the public that they are trying to identify the heirs of the deceased. This is accomplished by placing an ad in the local newspaper as a public notice.
Once the attorney-ad-litem is through with the investigation, she files her report with the court and the judge conducts a hearing. The attorney-ad-litem, the applicant's attorney, and the applicant are required to appear in court for the hearing. Sometimes, the court may require two disinterested witnesses to appear as well. The hearing covers some of the same ground as the attorney-ad-litem's investigation and gives the judge the opportunity to hear from the witnesses about the decedent's marital and dating history. After the hearing, the judge will issue an order listing the decedent's heirs and relevant parties can use the order as proof that they are entitled to receive property of the deceased. The order will also likely appoint an independent administrator to distribute the assets of the deceased person's estate.
Once the Heirs are Determined, Is the Estate Distributed?
Generally, yes. However, if there are issues, the parties may end up back in front of the judge who issued the original order. One such problem would be an independent administrator who is not distributing the assets the way the assets are supposed to be distributed. If the independent administrator is not following the law, other heirs or interested parties may ask the court to remove him/her. Also, if there is a disagreement between the heirs about how exactly the assets are to be distributed, the administrator may request the court's oversight through what is known as a dependent administration.
Is There a Better Way?
A judicial determination of heirship may be needed to distribute the assets of an intestate estate, but it is often expensive and time-consuming. A better suggestion would be to have a basic will and powers of attorney in place. However, we rarely get to choose how someone else plans for their stuff at the end of their life. So, if you need help determining how someone else's estate is to be distributed we will be happy to guide you through the determination of heirship process and later, the estate administration.
We are just a phone call away at (817) 261-5000 or click the following link to set up a FREE 15 minute consultation. We're ready to answer whatever questions you have.