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San Antonio, TX Family Law and Military Divorce Blog

Thursday, July 10, 2014

Formal Probate Alternatives - Part 1: Proceeding to Declare Heirship

This blog post is the first in a three-part series that describes alternatives in Texas when a full, formal probate either isn't possible or necessary. Today, we'll discuss a "Proceeding to Declare Heirship."  There two main scenarios in which a Proceeding to Declare Heirship becomes necessary are:

  1. The decedent died "intestate," meaning without having left a valid Will; and,
  2. The decedent's Will was not probated within four years after death (in which case the Will no longer is valid).

An application can be filed with the court by an heir, guardian, creditor or other interested person.  The application includes four important categories of information:

  1. A description of the decedent's marital and family history (i.e. the known heirs, who must be served with notice of the proceeding);
  2. A description of the decedent's separate and community property, including both real property (e.g. house/land) and personal property (e.g. cars, furnishings, money);
  3. A listing of the percentage of the decedent's separate and community property, both real and personal, that each known heir will receive (assuming no unknown heirs are identified) with the percentages determined by Texas law; and,
  4. Identification of at least two credible, disinterested witnesses who can testify to the decedent's marital and family history; a disinterested witness can be a long-time friend or family member, but they must be someone who will not "take" property as a result of the proceeding.

Next, an Attorney Ad Litem must be appointed by the court to represent the interests of potential "unknown heirs."  The Attorney Ad Litem will interview the disinterested witnesses and perhaps other persons who have the similar knowledge before filing a report with the court.  If no previously unknown heirs are discovered during the Attorney Ad Litem's investigation, the next step is the heirship hearing in court.

The Application for a Proceeding to Declare Heirship may or may not need to be accompanied by an Application for Independent Administration.  Whether an Independent Administration (meaning, a probate adminstration largely free of court supervision) is necessary will depend on the nature and extent of the decedent's property and debts. An example of when an application for Independent Administration might not be required is when the only issue is resolving title to real property.  In those cases, the Proceeding to Declare Heirship can take as little as two to three months, depending on everyone's schedule, including the court's. A qualified probate attorney will be able to advise you after discussing the specific facts of your situation.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


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