When a person dies with a Will, a very simple legal process known as "probate of Will" is completed. The Will is admitted to probate, and the named Executor then has authority to distribute the assets of the estate to the named beneficiaries of the Will. Importantly, the Will itself dictates who receives the estate property, and can include anyone that the Testator chooses. However, if a person dies without a valid Will, or has a Will that doesn't entirely dispose of the estate properly, the person is legally referred to as "intestate". Today's blog post will address the basic proceedings for handling an intestate estate.
When a person dies intestate, Texas heirship law dicates which family members will receive the person's property, and in what portions. Typically, these family members might include spouse, children, parents and siblings of the Decedent. These family members are referred to as heirs.
How does the Heirship Process Work?
An Application to Determine Heirship is filed with the county clerk's office, typically in the county in which the Decedent resided at the time of death. Commonly, the application is accompanied by a separate Application for Administration of the Estate, in which a request is made for the Judge to appoint a specific family member to have authority to transact the business of the estate. Once the application is filed, the clerk's office will post the application at the courthouse, and a local newspaper will publish a notice of the proceedings. These notices are required by law so that anyone who might have a legal or financial interest in the estate may properly respond to assert his or her legal rights.
The Court then appoints an Attorney Ad LItem, which is a local attorney the Judge trusts. The role of the Attorney Ad Litem is to conduct an independent investigation to determine who the Decedent's heirs are.
Once the Attorney Ad LItem is satisfied that all heirs have been identified and given proper notice, and has determined what the legal interests of each heir are, the Court will be ready to conduct a hearing.
At the hearing, the Applicant (typically the family member who wishes to be appointed as the Administrator of the Estate) and two independent witnesses, along with the attorney for the Applicant and the Attorney ad Litem, appear in the courtroom to present evidence. The independent witnesses testify under oath about who the family members are, and about the non-existence of a Will. The Attorney Ad Litem reports to the Court his or her efforts to locate any heirs. The Court then determines who the heirs are and what portion of the estate each will receive, and also appoints an Administrator of the estate. Unless all of the heirs agree to waive bond and for the Administrator to serve independently of Court oversight, the Court will require the Administrator to post a bond, and the amount of the bond is sometimes a disputed issue.
Once the bond has been posted, the clerk will issue Letters of Administration to the Administrator, which will give proper legal authority for the Administrator to transact all of the business of the estate. The Administrator then proceeds to identify, collect and distribute all estate property, and then submits an Inventory to the Court that lists all of the property and the value of each item of property.
If you have lost a loved one, important legal steps must be taken to protect and properly distribute the estate assets. The attorneys of Christiansen Law Firm has signficant experience handling probate matters, including probate of wills and heirship proceedings. Contact the offices of Christiansen Law Firm in San Antonio or Houston to arrange a free case evaluation.