Many Texans think that carrying out the terms of a will is a simple and straightforward matter. That preconception is true most of the time, but occasionally, the business of locating heirs and creditors and settling claims against the estate is not simple. Potential heirs may have moved several times since the will was created, and some, especially female heirs, may have changed their names. In order to fulfill his fiduciary duty to the estate, the executor may need to invoke the power of the probate court to finally and irrevocably determine whether a given individual is in fact an heir of the decedent. An heirship proceeding is a court case designed to do just that.
Starting an heirship proceeding
Four types of individuals have the power to file a petition for a determination of heirship:
- The personal representative of the estate;
- A creditor of the estate;
- A person claiming to own all or a portion of the decedent’s estate; or
- A party seeking the appointment of an independent administrator of the estate.
Texas law explicitly requires that an attorney licensed to practice in Texas sign and file the petition. The petition must name all known heirs and person who might be heirs. A notice of the filing of the petition must be served upon all heirs and potential heirs.
Appointment of a guardian ad litem
The court will appoint an attorney to represent the interests of deceased heirs, heirs whose names are not known, and heirs whose location is unknown.
Determination of heirship
The first step on the path to determining heirship is determining whether the property owned by the deceased is community property or separate property. Once this determination is made, a provision of the Texas statutes will determine who are lawful heirs of the estate.
Once the lawful heirs of the estate have been identified the court will follow various statutory procedures to divide the estate assets. Anyone who is or may be involved in an heirship proceeding may wish to consult an experienced probate attorney for advice on how best to protect an interest in the estate.
