Probate without a Will (Intestacy)
Probate Process without a Will -- Heirship Proceeding
In the event that your loved one passed away without creating a will, the procedure for transferring the assets of their estate are dictated by Texas laws of intestacy. In general, the procedure used is called an heirship proceeding. In some instances, an heirship proceeding is also needed if the will failed to dispose of all of the estates assets or if the will was not filed with the court within 4 years of the decedent's, your passed loved one, death. Generally, the nearest kin are the appropriate party to file an application for an heirship proceeding, going in order from spouse, children, children's descendants, parents, siblings, and finally, more remote kin. Texas laws of intestacy are very specific as to how estate assets are to be distributed based upon the exact circumstances. These circumstances most often include whether their is a surviving spouse, children, or stepchildren. After obtaining the family history of the decedent, an attorney should be able to tell you the exact distribution of the estate to heirs. Depending upon the circumstances, the real property (house, land, and mineral rights) and personal property (cars, bank accounts, IRAs, and tangible items) belonging to the decedent's estate will be distributed differently based upon whether it is community property or separate property.
After obtaining the family history, assets, and liabilities of the decedent, the next step is to file the application for heirship proceeding in the proper court, either the probate or county court, depending upon the county. Most often the proper county is the county in which the decedent resided at the time of their passing.
At this point, the court must appoint an attorney ad litem to represent any unknown heirs or incapacitated heirs. The attorney ad litem must research the decedent's family history sufficiently to be satisfied that there are no proper heirs who have failed to be named in the proceeding. Once the attorney ad litem has filed a report, a hearing can be scheduled with the court to officially name the proper heirs to the decedent's estate and appoint an administrator, if necessary. An administrator is necessary if there several debts owed by the estate or if there are assets that cannot be transferred based upon the order declaring heirship. In the event an administrator is necessary the court will then issue letters of administration giving the administrator the legal authority to handle the decedent's assets and transfer them to the heirs.
At the Law Offices of Benjamin E. Golden, PLLC, we have helped numerous clients handle heirship proceedings and obtain letters of administration, and we have the experience to do the same for you.
Contact us now at (210) 802-9377 for a free consultation to discuss whether an heirship proceeding is appropriate or click below for further information on related issues.