Applications to Determine Heirship

If some or all of the property cannot be transferred using more straightforward methods (for example, small estate affidavits and affidavits of heirship), file an application to determine heirs with the probate court.

An application to determine heirs is appropriate when:

• the estate has not been administered and there is property in Texas, or
• if property in Texas was left out of a will.

An application to determine heirship is a proceeding in which a court determines who the deceased’s heirs are and which heirs get which shares of the property. 

People who can file an application to determine heirship include:

• the personal representative of the estate,
• a creditor of the estate,
• a person claiming to be the owner of all or part of the decedent’s estate,
• a party seeking the appointment of an independent administrator.

Yes. Under Texas law, people applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. Only licensed attorneys may represent someone else’s interests. Self-represented applicants may proceed in court only if they are really representing themselves alone. 

Every unknown and known heir of the deceased must be made a party to this suit. 

To determine who the heirs of an estate are, first determine if the deceased’s property is separate or community property; if the deceased was married or unmarried; whether the deceased had children; and, if so, whether those children were also the children of the deceased’s spouse. Once these facts are determined, Chapter 201 of the Texas Estates Code governs who the heirs of the property are. 

This notice must be given to each heir aged 12 years or older and the parent, managing conservator, or guardian of each heir younger than 12. See Texas Estates Code 202.051, which also contains proper methods of giving notice.

The court must appoint a lawyer—called an attorney ad litem—to represent the interests of heirs whose names or locations are unknown. Usually, an attorney ad litem's involvement is limited to the heirship determination proceeding. The court may expand that appointment to include the representation of an incapacitated heir. See Texas Estates Code 202.009.

Two disinterested witnesses are required. Disinterested witnesses are witnesses who have no financial interest in the estate.

Witnesses don't have to appear live. A deposition on written questions may be taken for out-of-town witnesses.

The Texas Rules of Civil Procedure (specifically Rule 200) related to the taking of a deposition on written questions must be followed. Neither an affidavit (a sworn, written statement) nor interrogatories (another type of written questions used for gathering evidence) can be used.

A court can make a determination of heirship on the testimony of only one witness if it is impossible to find an additional disinterested witness. The court usually prefers one disinterested witness in addition to an interested witness if that is all that is available.

At some point, either at the same time or following the declaration of heirs, an Application to Appoint an Administrator for the estate must be made if there is property to be distributed. The application to declare heirs and for the estate administration are both filed in one document. This request for administration must be filed within four years from the date of the decedent’s death.

• Texas Young Lawyers Association: Texas Probate Passport
• Houston Bar Association: Elder Law Handbook
• Austin Bar Association: People’s Law School videos related to probate

Nothing in this article should be considered legal advice. It is solely for informational purposes. Nor does it substitute for consultation with a competent probate attorney.  Nothing in this material creates or implies any attorney-client relationship.