While everyone should execute a Last Will and Testament, many people never really get around to it. When death occurs prior to the proper execution of a valid Last Will and Testament, the decedent is known as an "intestate". Texas law provides for who receives the decedent's property, and for who will be responsible for distributing the property, which may or may not be what the decedent wanted. Today's blog post will outline the basic steps for administering the estate of an intestate decedent.
Step One: Identifying the Heirs and Searching for A Will
The Court will need to be satisfied that a diligent search for a Last Will and Testament document has been completed, and that the Applicant has identified and located all of the heirs of the estate. Texas law provides an elaborate system for who inherits what types of property. An experienced probate attorney can assist with this.
Step Two: Prepare and File an Application to Determine Heirship and Application for Independent Administration
An attorney will prepare an Application to Determine Heirship and Application for Independent Administration, and file these documents with the clerk of the county in which the Decedent was domiciled at the time of death. The request for the administration to be "independent" refers to the administrator's desire that the Judge not provide any oversight in the distribution of the estate. The Court only has power to grant independent administration if all of the heirs consent in writing. Otherwise, the administrator will be "dependent" and will need the Judge's approval for most of the transactions to be conducted.
Step Three: Diligent Search for Missing or Unknown Heirs
While the Applicant may be confident about who the Decedent's family member heirs are, the Court cannot simply rely on the Applicant's testimony alone as to the identity of the heirs. For example, it is possible that the Decedent had another child that the family is not aware of, and that child would also be an heir. Because of this, Texas law requires that the Court appoint an Attorney ad Litem to conduct a diligent search for any missing or unknown heirs, and satisfy himself or herself that all of the heirs have been accounted for, located and properly notified of the legal proceedings. This process includes reviewing documents, speaking with the Applicant and at least two independent witnesses that are familiar with the Decedent's family background, and completing independent research (often on the Internet) to see if any other undisclosed family members can be identified. The Attorney Ad Litem then submits a report to the Court.
Step Four: Prepare Documents and Attend Hearing
The attorney will prepare proposed Orders for the Judge to sign, as well as other legal documents that must be submitted prior to the hearing. Once the documents are ready, the attorney coordinates a convenient hearing date with the Court, the Attorney Ad Litem, the Applicant and two independent witnesses. At the hearing, the Applicant and two witnesses testify, upon questioning by the attorneys, that all of the heirs have been identified, and that the Applicant should be appointed as the Independent Administrator. Upon proper testimony, the Judge then grants the relief sought and signs the Orders. Once the Applicant has taken the Oath and posted any required bond, the clerk then issues Letters of Administration to the Applicant.
Step Five: Administering the Estate and Submitting the Inventory
Once the Letters of Administration are received, the Independent Administrator then has authority to identify, locate and take control of all of the Decedent's property, and to distribute the estate to the heirs of the estate in the legally proper percentages. The Independent Administrator is also responsible for paying any debts of the estate. Careful accounting and documentation should be made throughout the process. Additionally, the attorney will assist the Independent Administrator in preparing an Inventory, which shows each asset and its value. This Inventory is then submitted to the Judge for review and approval.
Heirship and administration proceedings can be confusing. It is important for the family of a lost loved one to ensure that each step is followed so that the estate can be properly administered. The attorneys of Christiansen Law Firm has extensive experience in heirship proceedings and can provide needed guidance in these difficult circumstances. Contact Christiansen Law Firm in Houston or San Antonio for additional information.