Contested Heirship in Dallas County

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.

Affidavit of Heirship and Judicial Determination of Heirship

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.

Required Parties

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.

The Attorney Ad Litem

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.

Dallas County Local Rules on Heirship Testimony

  • Two disinterested witnesses are the preference. Local Rule 5.06 states that unless the evidence shows only one or no disinterested person has personal knowledge of the facts, the Dallas County statutory probate courts prefer every judgment declaring heirs to rest on the testimony of at least two disinterested witnesses. Finding the second witness is often where most of the preparation time goes.
  • The testimony gets written down. Local Rule 5.05 requires testimony taken in open court on an application to determine heirs to be committed to writing at the time, subscribed and sworn to in open court, and filed with the clerk. The court can waive this in whole or in part by agreement of the parties or on its own motion, but you should prepare as if it will apply.

Common Heirship Disputes

These are the issues that most often turn an heirship application into a contested case.

  • A child from an earlier relationship, or one the rest of the family didn’t know about
  • Whether a marriage existed at all, which in Texas can be an informal marriage proved after death
  • Adoption, including adoption by estoppel
  • Whether property is community or separate, which can change the shares completely
  • Heirs who can’t be found, where the ad litem’s search becomes the center of the case
  • A prior deed or transfer that moved the asset out of the estate before the case was filed

Dallas County Probate Courts

Dallas County has three statutory probate courts under Texas Government Code Section 25.0591(d).

  • The Probate CourtJudge Julia R. Malveaux
    Associate Judge Mary Jayne McNeil George
    Suite 100
  • Probate Court No. 2Judge Ingrid M. Warren
    Associate Judge Ryan Trobee
    (214) 653-7138
    Suite 200
  • Probate Court No. 3Judge Margaret Jones-Johnson
    Associate Judge Tomi J. Shehan
    (214) 653-6166
    Suite 300

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.

Contested Heirship Litigation

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.

Counties We Serve From Dallas

  • Dallas
  • Collin
  • Denton
  • Rockwall
  • Kaufman
  • Ellis

Disagreement About Who the Heirs Are

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.