The required procedures for opening a Texas Probate Estate when there is no Will are twice as scary as the Cutting Edge Haunted House in Fort Worth, and not nearly as much fun.
If you die and don’t leave a valid Will, then you die “intestate.” In order to distribute your assets and pay your debts, your heirs have to go through two steps. First, they have to file a Determination of Heirship so the Judge can formally identify the heirs to your estate. Second, they have to file an Application for Probate, and ask the Judge to open an administration.
This is the gallery of horrors that awaits your heirs:
- File an Application for Determination of Heirship that contains 8 categories of information. Each applicant has to prepare and file an affidavit that all of the information in the Application is true and correct.
- The following are necessary parties to the Application: each one of your “unknown” heirs, all known heirs, and every person who owns any share of real property in which you had an interest. Each one of these parties, even if he or she is younger than 18, has to be formally served with the lawsuit or “waive” service. Each proof of service and waiver has to be filed.
- Publish a citation in the newspaper, and then file the formal notice that this has been done.
- File an affidavit that all of the notices have been served or published.
- An attorney ad litem is appointed to represent the unknown heirs. The AAL files an answer, and then has to investigate your life to find out if there are, really, any unknown heirs. Your heirs, of course, must pay the AAL. In fact, some probate courts require the AAL payment to be deposited at the time the Application is filed.
- Attend the hearing with two disinterested witnesses (not related to you), testify, and prepare a “Proof of Facts” of the testimony.
- Prepare a judgment that sets forth the division of property, divided as to separate real and personal property and community real and personal property.
Assuming they have survived this death march, your heirs will then proceed to the second step: a Section 401.003 creation of independent administration in intestate estate by agreement.
Rest assured – if you weren’t already dead, by this point your heirs would want to murder you.
Don’t make your heirs go down this scary path. Get a Will.
Hammerle Finley Law Firm. Give us a call. We can help.
The information contained in this article is general information only and does not constitute legal advice. ©2015
