When someone dies without a will, a Texas court has to declare who the heirs are before the property can be distributed. In most families that’s a routine filing. When relatives disagree about who belongs on the family tree, the heirship case goes to trial, and that’s the work we do.
An affidavit of heirship is a sworn statement recorded in the county deed records. It’s inexpensive, but it isn’t a court order, and a title company can decline to rely on it.
A judicial determination of heirship is a court proceeding that ends in a judgment naming the heirs and each one’s share. It binds everyone who was properly made a party.
We handle judicial heirship cases when they’re contested. If all you need is an uncontested affidavit, tell us on the call and we’ll point you to someone who handles that work.
Texas Estates Code Section 202.008 requires three groups to be made parties: each unknown heir of the decedent, each person named as an heir in the application, and each person who, on the date the application is filed, is shown by the deed records as owning a share or interest in real property described in the application.
Families most often overlook the deed-records group. If someone holds a recorded interest in a tract listed in the application, that person is a required party even if the family doesn’t think of them as part of the estate.
Section 202.005 sets out what the application has to say. It includes each heir’s name, address, relationship to the decedent and interest in the estate, a statement that all children born to or adopted by the decedent are listed, and each of the decedent’s marriages. If the application leaves out required information, it has to explain why, so gaps in the family history need to be dealt with before filing.
Under Estates Code Section 202.009(a), the court shall appoint an attorney ad litem to represent the interests of heirs whose names or locations are unknown. Under 202.009(b), the court may expand that appointment to cover an heir who is an incapacitated person.
The court has no discretion to skip this appointment. Under Estates Code Section 53.104, the court sets the ad litem’s fee and taxes it as costs, to be paid out of the estate or by a party. Expect the ad litem to run an independent search for heirs, question your witnesses and object if the family’s account has gaps, so we build the evidence with that review in mind from the first filing.
These are the issues that most often turn an heirship application into a contested case.
Dallas County has three statutory probate courts under Texas Government Code Section 25.0591(d).
All three sit on the 7th floor of the George Allen Courts Building, 600 Commerce Street, Dallas, Texas 75202.
Local Rule 2.01(a) assigns cases randomly among the three courts. Under Rule 2.01(a)(2), a matter filed after a nonsuit or dismissal for want of prosecution of an earlier case involving the same decedent’s estate goes back to the court where the earlier case was pending, so refiling won’t get you a different judge.
Once the parties disagree about who the heirs are, the case proceeds like any other lawsuit, with discovery, depositions, sometimes DNA testing, and a trial setting. The Dallas County rules for contested matters apply. Local Rule 3.04(c) requires three attempts to confer before most motions, Rule 3.04(d) requires a certificate of conference in the exact wording the rule sets out, and Rule 3.03(b) tightens service for anything filed within 30 days of trial.
The goal is a clean heirship judgment. That judgment is what a title company relies on to insure a sale, and it keeps the same question from being raised again later.
Bring the family tree as you understand it, any deeds you have, and the names of anyone whose status is in question. The first consultation is free and usually brief.