federal court and law bookFor our next post in this series on Texas heirship determinations, we discuss the procedures and rights of heirs involved in heirship proceedings. Let’s say your family member died, and you suspect an heirship determination may be forthcoming. What rights do you have, and how do you assert them? The first part of this series focused on the people who may be heirs, including biological family members, formal and common law spouses, and children adopted by estoppel. Now, we address some of the practices and procedures in probate courts and how you can take advantage of them.

Opening and Pursuing a Probate Case. Any person with an inheritance claim can file an “application to determine heirship” with the probate court located in the county where the deceased person resided. In that application, the person, called the “applicant,” swears to certain facts under penalty of perjury. Importantly, those facts include a list of the people whom the applicant asserts are the actual heirs. They must then go through a series of requirements, some of which are mentioned below. Then, the probate court will hold a trial, where the applicant and any other parties can bring witnesses and other evidence. The court will enter an official judgment that names the deceased person’s heirs and what portion of the deceased person’s estate they will inherit.

Required Notice and Citation to Listed Heirs. The applicant is responsible for sending legal notice to the heirs listed in their application. Typically, that means the applicant will arrange for the court to mail a “citation” to the listed heirs. The purpose of the citation is to inform the heir that an heirship proceeding was filed, and they can participate in the legal proceeding if they choose. The applicant is not required to give notice of the exact time and date of any hearings or trials.

Notice Not Required for Unlisted Heirs. The applicant is not required to send notice to people who may have heirship claims. This means that children with unproven paternity, common law spouses, and children adopted by estoppel may not receive notice that a probate proceeding is active. If you are one of these people with potential heirship claims, then you should contact the court yourself, as discussed below.

Public Information from the Court. The general public can always find out whether an heirship proceeding has been filed. Some counties, typically the bigger ones like Dallas, Tarrant, Harris, and Travis Counties, have online dockets where anyone with an internet connection can see which cases are pending and what hearings are scheduled. For counties that do not allow online access to dockets, the general public can call the clerks of the court, mention the name of the deceased person, and ask about the status of the heirship proceeding.

Attorney ad Litem. In every heirship determination, the court will appoint an “attorney ad litem for unknown heirs.” This person is a licensed attorney charged with investigating whether the applicant has truthfully listed all of the heirs. If the attorney ad litem suspects that an heir may be missing, then they will attempt to contact the missing heir and give them the opportunity to participate. Generally, the job of the attorney ad litem ends there. In other words, the attorney ad litem will attempt to notify people with potential heirship claims, but will not represent them as their attorney.

Participate in the Proceeding and at Trial. Any person with a potential heirship claim has the right to hire a probate attorney, assert their claim, and participate in trial. After the potential heir appears in the proceeding, they will then have the right to advance notice of all hearings and trials. If the heirship proceeding becomes contested, courts will treat the case like a lawsuit and allow your attorney to pursue written discovery, depositions, and motions.

If you have an heirship claim, and suspect an heirship determination may be pending, we recommend that you hire a Texas probate lawyer to assert your inheritance rights. Because applicants are not required to give notice to all potential heirs, an heirship may be filed without your knowledge. An experienced Texas probate attorney can help determine the status of the proceeding, assert your claim, and preserve your rights. Our Dallas lawyers are skilled in asserting heirship claims and have represent heirs in hundreds of Texas probate cases. Call us today to discuss your claim. Our offices also service Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.

In our next post, we will wrap up this series and relay some of the most important takeaways.