When someone dies without a will, or with a will that does not dispose of everything, a court has to decide who the heirs are. That is a heirship proceeding under Chapter 202 of the Texas Estates Code. Most are routine. The ones that are not tend to be about a marriage nobody acknowledges, a child nobody mentioned, or land that six families have been using for forty years.
Section 202.008 requires that each of the decedent’s heirs be made a party to the proceeding, including every unknown heir. You cannot determine heirship by agreement among the relatives who happen to be in the room.
Service reflects that. Known heirs are served. Heirs whose addresses cannot be ascertained, and unknown heirs, are served by publication in the county where the proceeding is commenced and in the county of the decedent’s last residence, with posted citation where publication is not used.
This is the part that surprises families most.
Under Section 202.009(a), the court shall appoint an attorney ad litem in a heirship proceeding to represent the interests of heirs whose names or locations are unknown. Not may. Shall. Every heirship determination gets one.
Under Section 202.009(b), the court may expand that appointment to cover an heir who is an incapacitated person, where the court finds it necessary to protect that heir’s interests.
The ad litem is not a formality. Their job is to go looking. A diligent ad litem files an answer denying the allegations and demanding strict proof, interviews the applicant, contacts disinterested people who knew the family, and asks the questions relatives avoid asking each other: were there other marriages, were there other children, inside or outside the marriage. If they find an heir who was not in the application, they report it, and the application has to be amended.
That is frequently how a routine heirship becomes a contested one. Plan for the ad litem to do their job rather than hoping they do not.
The ad litem is entitled to reasonable compensation, paid out of the estate.
Harris County has five statutory probate courts, created by Texas Government Code Section 25.1031(c):
Courts 1 through 4 sit at 201 Caroline Street. Court No. 5 sits at 1115 Congress Street.
Heirship determinations are core matters. They stay in the estate’s cause number in the court that has the estate.
These proceedings come in several forms: heirship incident to a dependent or independent administration, heirship where no administration is sought, and heirship by declaratory judgment where intestacy arises under a will, trust, or other instrument.
The order determining heirship states the names and residences of the heirs and their respective shares in the estate’s real and personal property.
That judgment is what title companies rely on. Until it exists, inherited real property in Harris County and the surrounding counties is effectively unsellable and unmortgageable, which is why families often discover they need an heirship proceeding only when they try to sell the house.
When the facts are disputed, this stops being a paperwork exercise. There is discovery, there are depositions, and there is a trial on contested fact issues. Texas Estates Code Section 55.002 gives a party in a contested probate proceeding the right to a jury trial as in other civil actions, and whether a common-law marriage existed is exactly the kind of question a jury decides.
Under the Harris County probate courts’ local rules, cases that have not been through a previously ordered alternative dispute resolution procedure generally will not be tried, except for good cause shown. Expect mediation first.
Be aware of the dead weeks as well. These courts do not set trials during the week of the State Bar’s Advanced Estate Planning and Probate course, or during any December week whose Monday falls between the 22nd and the 31st.
An affidavit of heirship is not a court judgment. It is a sworn statement recorded in the real property records, and it is a reasonable tool for a small, undisputed estate. It is not what you want when the facts are disputed, when a title company has already refused it, or when real property of significant value is involved. If someone has told you an affidavit will fix a contested situation, get a second opinion.
We handle contested heirship proceedings and the disputes that grow out of them, in all five Harris County probate courts and in the surrounding counties. Our minimum engagement is $10,000, and contested matters are billed hourly against a retainer.
If your heirship is undisputed and straightforward, we are not the right firm for it and we will tell you that on the first call.
The first conversation is thirty minutes, no charge. Bring what you know about the family: marriages, children, dates of death, and which pieces of property are involved.
Schedule a consultation or call (281) 219-9090.