When someone dies without a will, or with a will that doesn’t dispose of everything, a court has to decide who the heirs are. That’s a heirship proceeding under Chapter 202 of the Texas Estates Code. Most are routine. The contested ones usually turn on a marriage nobody acknowledges, a child nobody mentioned, or land that six families have been using for forty years.
Section 202.008 requires that every unknown heir, every person named as an heir in the application, and every person the deed records show owning an interest in real property described in the application be made a party to the proceeding. Relatives can’t settle heirship among themselves by agreement.
The service rules follow from that. Heirs whose names and addresses are known or can be found with reasonable diligence are served by a qualified delivery method. Anyone whose address can’t be found, and all unknown heirs, are served by publication in the county where the case is filed and in the county of the decedent’s last residence if that’s a different county. Where publication isn’t used, the citation is posted in both counties.
Families are often surprised to learn the court has to appoint an attorney ad litem in every heirship case.
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. The appointment is mandatory, so 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’s job is to go looking for heirs. 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 about other marriages and other children, inside or outside a marriage. If the ad litem finds an heir who wasn’t in the application, the application gets amended.
That’s often how a routine heirship turns into a contested one, so plan on the ad litem doing the job thoroughly.
The court sets reasonable compensation for the ad litem, taxes it as costs and typically orders it paid out of the estate.
Harris County has five statutory probate courts, created by Texas Government Code Section 25.1031(c):
Probate Courts No. 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 sits at 1115 Congress Street, 5th Floor.
The local rules treat a determination of heirship as a core matter, filed under the estate’s main cause number in the court that has the estate. The court can sever a core matter into an ancillary proceeding at its discretion.
The local rules list heirship in a few settings: a determination of heirship on its own, heirship within an administration or guardianship, and heirship or a declaratory judgment as part of a muniment of title proceeding.
The judgment declaring heirship states the names of the heirs and each heir’s share and interest in the decedent’s property. If the proof was deficient in any respect, the judgment has to say so.
Title companies rely on that judgment. Until it exists, inherited real property in Harris County and the surrounding counties is effectively unsellable and unmortgageable, which is why families often find out they need a heirship proceeding only when they try to sell the house.
Once the facts are disputed, a heirship case becomes litigation, with discovery, depositions and a trial on the 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, except for good cause shown, only cases that have been through a previously ordered alternative dispute resolution procedure will be tried. Expect mediation first.
Keep the dead weeks in mind too. Unless all parties consent, these courts won’t assign cases to trial on the merits or set oral hearings on motions 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 a sworn statement recorded in the real property records, not a court judgment. It’s a reasonable tool for a small, undisputed estate. It won’t serve you 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.
If your heirship is undisputed and simple, we’re not the right firm for it, and we’ll tell you that on the first call.
The first conversation is a short call, and it’s free. 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.