Sandra Reed’s Life Care Planning: Daddy died without a will — what’s a family to do?

No Will: Bring in the Heirs

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

When a person dies without a will, the state determines, through its intestacy laws, who gets the property. In order to effectuate appropriate distribution, a judicial determination in the probate court as to who the heirs are is necessary. This is called a “proceeding to declare heirship” or an “heirship determination.”

Anyone who claims to be an owner of all or part of the estate can initiate the heirship determination.  Texas Estates Code §202.005 controls the information that must be included in the application. The application must state the decedent’s name and time and place of death, the names and residences of the decedent’s heirs, their relationship to the decedent and the interest the applicant and the heirs have in the estate.

If the time and place of death or the required information concerning heirs is not known, then the application must contain all the facts and circumstances, of which the applicant has knowledge, that might reasonably tend to show that information.

All children who were born to or adopted by the decedent must be listed. Each marriage, date of marriage, name of each spouse and date and place of termination of any marriage ended by divorce, annulment or death must also be listed. If there are other facts which would show that a spouse has an interest in the property, these facts must be included.

Finally, the application must include a description of all the property belonging to the decedent’s estate and an explanation for the omission of any information required by Texas Estates Code §202.005.

Application to Determine Heirs Filed: What Next?

Appointment of Attorney Ad Litem

If it is reasonable to suspect that there are unknown heirs or heirs whose whereabouts have not been discovered, the court will appoint an attorney ad litem to represent these persons’ interests. This appointee will investigate, using all reasonable means to determine the unknown heirs and to locate them. The size of the estate and the judge’s assessment of “reasonable effort” locate heirs may dictate the hiring of a genealogist. Once the attorney ad litem has finished performing the necessary tasks, he or she will file a report containing the results of the investigation with the court.

Notice to All Heirs, Known and Unknown

It is necessary to give notice of the proceeding by certified mail to all the known heirs whose whereabouts are known or can be found with reasonable diligence. In lieu of this notice, an heir can sign a written waiver stating the notice is not necessary as to him or her. The requirement of notice for those who have not been located is satisfied through publishing material information concerning the proceeding in a newspaper of general circulation in the county where the decedent resided or in the county where the decedent died.

Heirs Located and Given Notice: Now What?

The court will set a hearing date at which time the evidence will be presented as to who are the heirs.  Generally, two witnesses who do not stand to gain from the decedent’s estate but who are familiar with the history of the family will testify as to the heirs known to them. The court may require that the evidence be reduced to a writing that is sworn to by the witness. (Texas Estates Code §202.51)

The court is required to accept into evidence a recorded statement of facts concerning the family history, genealogy, marital status or identity of heirs of a decedent as prima facie evidence of the facts contained in the statement. That the evidence is prima facie means that it is sufficient to establish the fact as true unless the fact is disproved or rebutted. Witnesses or documentation can be submitted that disproves this evidence.

Following the hearing and the presentation evidence, the probate judge will enter a judgment establishing, as a matter of law, the heirs and the shares and interests each heir has in the decedent’s property.

Matters Affecting Who The Heirs Are

Determination of the heirs when decedent had no will is affected by various laws applied to the facts.  Most people recognize that a child can inherit from the biological mother and the biological maternal grandparents, if the mother is deceased. They may not know that an adopted child also inherits from the adopted mother and from the adopted mother’s parents, as well. Conversely, both biological and adopted mother may inherit from the biological or adopted mother. (Texas Estates Code §201.051).

Obviously, a child inherits from the biological father and from that father’s parents, if the father is deceased. The same is true if the father adopted the child. However, additional rules of inheritance with fathers are more complicated. A husband is legally presumed to be the father of any child born to a marriage, unless this presumption is rebutted.  Rebuttal can be shown by proving that the child is not his. If the presumption is not rebutted, the child will inherit from the husband, even if the child is biologically the child of another man.

A child also inherits from a man who has legally acknowledged that the child is his, even if the child was born out of wedlock. The same is true of a man who has denied paternity but paternity has been established by a court. Because of recent advancements in fertility procedures, the law provides that a child born of “assisted reproduction” inherits from the father if the husband consented to his wife’s obtaining that assistance.

Matters Affecting How Property is Divided

Texas decedents may die with both separate and community property. Separate and community property are distributed differently in an heirship determination if a spouse survives. Look for next week’s column to explain these differences.

Sandra W. Reed is an attorney practicing in Glen Rose, of counsel with the Fort Worth elder law firm of Katten & Benson. Phone: 254-797-0211;  email: swreed2@yahoo.com

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>