21 Apr What Happens if a Loved One Dies Without a Will in Texas?
Joy EckelkampSenior Counsel
Your loved one has passed. Once things have settled down you know it is time to move forward with the Texas probate process to settle their estate. You have searched everywhere and there is nothing to be found. But what do you do when a vigorous search does not produce a Will? Or the Will of a decedent is not a validly executed Will. What happens with their estate if they did not prepare a valid Will during their lifetime? What is an heirship?
The State of Texas intestacy statutes direct what happens with a person’s probate assets when they die without a validly executed Will. The Texas intestacy statutes identify certain relatives who take a decedent’s probate assets at their death. Intestate succession for the assets of a decedent is determined by the characterization of the marital property (separate versus community property), if the person is married, and whether the property is real property or personal property.
In most instances when a person dies without a Will there will need to be a formal Heirship Determination. An Heirship Determination is a legal proceeding with the probate court in which witnesses testify at a hearing to prove the legal heirs of a decedent. This is a formal process that involves not only an attorney to represent the applicant seeking the heirship determination, but also requires that the court appoint a neutral independent attorney as the attorney ad litem to investigate the heirs of the decedent to ensure that no heir has been left out. Both attorneys are paid by the decedent’s estate.
Unless an informal probate is available for the decedent’s estate, the Applicant for probate will need to engage an attorney to file an Application for Heirship Determination with the probate court. Notice must be posted and published notifying the public at large of the pending heirship for the decedent. Additionally, all purported heirs must be cited with notice of the proceeding or execute a waiver of notice. These various notice requirements take time to complete and then must be reported back to the court by filing a proof for each of the required notices with the probate clerk.
During this period that the notices are being forwarded, the court-appointed attorney ad litem will be interviewing the parties to ensure that no heir has been left out. Additionally, the Applicant for the heirship must produce two disinterested witnesses to testify to the court that have sufficient knowledge of the decedent during the entirety of their life to be able to testify under oath that the heirs presented to the court are the decedent’s only heirs. Locating the appropriate disinterested witnesses is often a challenging task. The disinterested witnesses must be able to testify to the full family and marital history of the deceased for the entirety of the decedent’s lifetime and cannot be related to a potential heir or inherit from the estate of the deceased.
Now that the Application has been filed with the court, the notices have been published and issued, the witnesses for the heirship have been located and the attorney ad litem has indicated they have completed their heirship investigation, a hearing date is set with the probate court assigned to the case. At the hearing, all parties are sworn in, testimony is given under oath, and the witnesses and applicant are cross-examined by the attorney ad litem. If all goes as planned, the probate judge will issue an heirship judgment.
The heirship judgment identifies each intestate heir of the decedent and their percentage or interest in the decedent’s estate. Often at this same hearing, a second matter is also heard before the court to appoint an administrator for the estate of the decedent. The type of administration available for the decedent’s estate also depends upon whether all the purported heirs can unanimously agree to the type of probate administration. If not all the heirs agree or there are any incapacitated or minor heirs, the estate may not qualify for an independent administration (the easier and less expensive type of probate administration), and instead, the lengthier and costlier dependent administration will be initiated. Heirship determinations not only take significantly more time to complete the required steps to get the Heirship Judgment, but they can be the more costly of the probate proceedings available in Texas.
The extra cost and time involved to prove up a person’s heirs can be easily avoided if the decedent left behind a validly executed Will or another valid estate plan.
If you need a Will or would like our legal professionals to review your current estate plan, we welcome the opportunity to be of service to you. Rapp & Krock’s estate planning department makes the mundane task of estate planning easy and comprehensive.
ABOUT THE AUTHOR: Joy M. Eckelkamp is a member of Rapp and Krock’s Probate, Estates, Elder Law, and Trusts Group, is Certified as an Elder Law Attorney through the National Elder Law Foundation, and has been servicing families and their legal needs in estates and trust law for 22 years.
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