Heirship Determination

A “Determination of Heirship” proceeding is often necessary when a family member passes away without a Will, or passes away with an invalid Will.

During such a proceeding, the court will, as the name suggests, formally determine who the heirs of an estate are, and the individual shares of that estate to which the heirs are entitled. To many, the necessity of these proceedings might seem odd. You likely know who your family members are, so why must that be formally determined? First of all, the law requires an investigation about any potential unknown heirs to ensure that all heirs truly have been accounted for. Even in cases where all heirs are known, the law often requires this formal determination in order to ensure that an estate’s property goes to the right people in the right amounts. By requiring this, the law provides protection for heirs of an estate against which unscrupulous people might otherwise try to make fraudulent claims, and otherwise makes sure that everything is done right.

Further, heirship and the associated property rights are often not as obvious as many might initially assume. For example, consider a scenario in which a man passes away who never married and never had children. Both of his parents are still alive, and his siblings are still alive. Who are the heirs? And in what proportion do those heirs get the property? Now change the scenario slightly. Let’s say that only one of his parents and all of his sibling are still alive. Who gets the property? And in what shares? You can see why an heirship determination is necessary and helpful in many cases.

As another example, consider a hypothetical blended family in which the spouses had children from a previous relationship as well as from the current marriage. In this scenario, if one of the spouse’s passed away without a Will (or with an invalid Will), then who gets the deceased spouse’s property? Many assume that the surviving spouse gets the property, but that is actually incorrect under Texas law. In such a case, the children would be entitled to much of the deceased spouse’s property. The surviving spouse would only keep his or her share of the community property from the marriage, including the house. That’s it! Granted, the surviving spouse could still live in the marital home, but could only do so with limited legal rights, meaning that, if he or she wanted to sell the home, she would have to get permission from the children, and even share the proceeds from the sale with them upon demand. In many cases, the children will simply deed their share of the property back to the surviving spouse, but, in other cases, the children will keep their share of the property. (This is an uncomfortable situation that you want to avoid, which is why it is recommend that everyone get a Will in place.)

Further, some of the documents from a “Determination of Heirship” proceeding can be recorded on formal government records, which can facilitate the transfer of property such as real estate. Thus, these proceedings not only identify and protect one’s heirship rights, but also provide a secure means of property distribution.

As a final note, Determination of Heirship proceedings often work in tandem with Independent Administration proceedings. This provides a holistic approach of not only identifying heirs and protecting their rights, but also appoints an Administrator who can handle the estate’s affairs.