Grave yard.jpgIf you have a family member who dies without a will an issue may arise as to who are the lawful heirs of the decedent. This is particularly important if the decedent owned any real property or any interest in real property, such as mineral rights, at the time of death. To help expedite the determination of who are the lawful heirs of the decedent, the Texas Legislature enacted Section 48 of the Texas Probate Code relating to proceedings to declare heirship.

A proceeding declare heirship can be used when a person dies without a will, owning real or personal property in Texas, and there has been no administration of his estate or when there has been a will probated in this State or an administration brought in this State but some real or personal property owned by the decedent has been omitted from the will or was not dealt with in the administration. In these instances, the court of the county in which such proceedings were last pending or, in the event that the will of the decedent was not admitted to probate or there was no administration of the decedent’s estate, a court in the county in which the decedent’s property is located, may determine and declare who are the heirs of the decedent and make a determination of their respective interests in the decedent’s estate.

Proceedings to determine heirship are can be brought by the qualified personal representative of the estate of the decedent, usually the executor or administrator or by persons claiming to be a secured creditor or the owner of an interest in the estate of the decedent, or by the guardian of the estate of an incapacitated person. To bring a proceeding to determine heirship, an Application must be filed in a proper court stating the following information:

(1) the name of the decedent and the time and place of death;
(2) the names and residences of the decedent’s heirs, the relationship of each heir to the decedent, and the true interest of the applicant and each of the heirs in the estate of the decedent;
(3) all the material facts and circumstances within the knowledge and information of the applicant that might reasonably tend to show the time or place of death or the names or residences of all heirs, if the time or place of death or the names or residences of all the heirs are not definitely known to the applicant;
(4) a statement that all children born to or adopted by the decedent have been listed;
(5) a statement that each marriage of the decedent has been listed with the date of the marriage, the name of the spouse, and if the marriage was terminated, the date and place of termination, and other facts to show whether a spouse has had an interest in the property of the decedent;
(6) whether the decedent died testate and if so, what disposition has been made of the will;
(7) a general description of all the real and personal property belonging to the estate of the decedent; and (8) an explanation for the omission of any of the foregoing information that is omitted from the application.

The Application must contain an affidavit from each applicant to the effect that, insofar as is known to that applicant, all the allegations in the Application are true in substance and in fact and that no material fact or circumstance has, within the applicant’s knowledge, been omitted from the Application. The unknown heirs of the decedent, all persons who are named in the Application as heirs of the decedent, and all persons who are who are identified, in the deed records, as owning any interest in the decedent’s real property, must be made parties to the proceeding.

The judgment of the court in a proceeding to determine heirship must state the names and places of residence of the heirs of the decedent, and their respective interests in the real and personal property of the decedent. A judgment in a proceeding to determine heirship may be appealed within the same time limits and in the same manner as other judgments in probate matters by any interested person. If any person who is an heir of the decedent is not served with citation in connection with the proceeding, he or she may at any time, within four years from the date of the judgment, have the judgement corrected by a bill of review, or upon proof of actual fraud, have the judgement corrected after the passage of any length of time. Such person may also recover damages from the heirs named in the judgment.

Although the judgment may later be modified, set aside, or nullified, it is conclusive in any suit between any heir omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted heir. Similarly, any person who has delivered funds or property of the decedent to the persons declared to be heirs in the judgment, or has engaged in any other transaction with them, in good faith, after entry of such judgment, shall not be liable therefor to any person for such delivery or transaction.

If the court states in the judgment that there is no necessity for administration on the estate, that recital constitutes authorization to all persons owing any money to the estate of the decedent, or having custody of any property of the estate, or acting as registrar or transfer agent of any interest, indebtedness, property, or right belonging to the estate, and to persons dealing with the heirs, as determined in the judgment, to pay, deliver, or transfer such property to such heirs, or to purchase property from such heirs, without liability to any creditor of the estate or other person. The heirs can also enforce their right to payment, delivery, or transfer by suit against such persons.

A statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent, commonly known as an affidavit of heirship, can be used in a proceeding to determine heirship, or in a suit involving title to real or personal property, if the statement is contained in either an affidavit or any other instrument legally executed and acknowledged before a notary public, but only if the affidavit has been filed of record for five years or more in the deed records of any county in which the decedent’s real or personal property is located or in the deed records of the county in which the decedent resided at the time of his death. If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts can be proved by anyone interested in the proceeding in which the affidavit is offered in evidence. An affidavit of facts concerning the identity of heirs of a decedent does not affect the rights of an omitted heir or a creditor of the decedent.

At the Law Office of Stephen O’Rear, P.C. we help people with heirship proceedings.