Let us count the ways your estate could end up in an heirship proceeding:
You die without a will.
You have a will, but you wrote it yourself using helpful hints on the internet.
You have a will, but all the people you name as beneficiaries die before you.
You have a will, but it does not address your entire estate.
You have a will, but it lists beneficiaries by category instead of by name.
You have a will, but no one can find it after you die.
You have a will, but more than 4 years pass after your death before someone thinks to probate it.
You have a will, but it leaves everything to your spouse, and you get divorced before you die.
You have a will, but your sole beneficiary murders you.
If any of these situations happen, then your estate will involve an heirship proceeding. You should know what will be required.
Heirship Proceeding Process
An interested person – usually your heir or a creditor – hires an attorney who drafts and files an application in court. For now, we will call the interested person the “applicant.”
The applicant advances all costs and fees, including the fee for the attorney. The applicant signs an affidavit that the facts in the application are true.
Every person who is named as your heir in the order of heirship application, each of your “unknown” heirs, and everyone who owns a share or interest in any real property in which you owned an interest must be made a party to the lawsuit.
The applicant finds 2 disinterested witnesses who can testify to your family history.
The applicant pays for additional copies of a death certificate to show that you are dead.
The attorney files a written request to the court’s clerk to issue a citation showing the suit has been filed.
The attorney drafts Proofs of Heirship that will be signed in court by the applicant and the 2 disinterested witnesses.
The attorney drafts the proposed Judgment determining heirship.
The attorney deposits money for the Ad Litem Fee. Usually this is between $450 and $550, but it varies by court. This fee is also advanced by the applicant.
The Court appoints an ad litem, who is a licensed attorney, to represent your unknown heirs.
Sometimes the ad litem also represents your heirs who are under a legal disability or who do not formally make an appearance in the case.
The attorney obtains the citation from the court clerk and arranges for it to be published.
The ad litem begins investigating your background and files a written answer with the court.
The ad litem prepares and files a written report summarizing the investigation and conclusions.
The attorney requests a court setting from the court clerk and e-serves the ad litem with notice.
The attorney either obtains personal service on all the parties or obtains a written waiver from them. The attorney files the return of service or waiver with the court clerk.
The court holds a hearing and determines who are your heirs and what percentage of your estate they receive.
The court awards attorneys’ fees to the ad litem.
The court signs a judgment.
At that point, the real work begins to administer your estate. Usually an expensive and lengthy court-supervised dependent administration is required.
If this sounds abhorrent – and it should- then do everyone a huge favor. Execute a will that has been drafted by a knowledgeable attorney, and review it at least every 5 years.
Hammerle Finley Can Help With Your Estate Planning Needs
Virginia Hammerle is in her fourth decade of practicing law. She is Board Certified in Civil Trial by the Texas Board of Legal Specialization and an Accredited Estate Planner. Contact her at email@example.com or visit www.hammerle.com. This column does not constitute legal advice.