The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
This firm is often asked to assist in the settling (probate) of an estate when the decedent died without a Will. If it is a small estate (i.e, less than $75,000, not considering exempt property, such as the homestead), then it can usually be handled with a Small Estate Affidavit. However, if it is more than $75,000, or if the debts exceed the non-exempt assets, it must be handled through an heirship proceeding. An heirship proceeding has two distinct parts. The first is to determine who the heirs are, and the second is to name an administrator who will pay the debts and disburse the remaining portion of the estate to the proper heirs.
First hearing is to determine heirship – This portion of the proceeding is designed to determine the identity of each heir and then to determine what portion of the estate passes to each of those heirs. This procedure usually begins with gathering information about the decedent. Was he/she married? Did she/he have children either living or dead? If he/she had deceased children, did those deceased children have children of their own before their death? Are the parents still living? Who are the decedent’s siblings? A general description of all property owned by the decedent and a statement regarding which heirs receive each class of assets based upon information known are also required.
Once the information is collected and put in the form of an Application to Determine Heirship, the Court will appoint an attorney ad litem to represent any unknown heirs. The attorney ad litem is charged with the duty to “shake the family tree” and report to the Court. The ad litem will interview witnesses, other family members and conduct such other investigation that is considered necessary to find unknown heirs, if any. He/she will then represent to the Court at the hearing that the investigation has been conducted and the conclusions drawn regarding other heirs. If there are additional heirs found, they will be included in the distribution of the estate in accordance with their relation to the decedent. If no additional heirs are found, then the ad litem will report that fact also.
After hearing all of the evidence presented, the court will sign an order establishing the percentage of ownership of each heir together with the portion and type of the estate that each person shall receive. The percentages are based upon the Texas laws of descent and distribution, sometimes called intestate succession.
All of the above procedures could have been avoided if only the decedent had left a Will describing how he/she wanted his/her estate to pass.
Second hearing is to appoint administrator – An administrator performs the same functions as an executor, had the decedent left a Will. Another wrinkle in the probate procedure surrounding heirship is the fact that, because there was no Will to give an executor the authority to be independent, the heirship proceeding must rely upon the approval and joining together all heirs in order for the administrator to serve independently. Independent administration (as opposed to Dependent Adminstration) is highly preferred by most persons because the cost of a dependent administration which requires court supervision can get expensive very quickly and can easily “eat up” a relatively small estate. Your best defense against that possibility is to have an attorney of your choosing prepare a Will.
It is also worthy of note that in addition to the possibility of dependent administration, a person who dies without a Will is causing his/her heirs to incur much greater time and expense for probate than would have been necessary with even a very simple Will. Instead of just a single hearing to probate your non-existent Will and have your property pass in the manner that you choose, the heirs will be obligated to pay two attorneys instead of one (the applicant’s attorney plus the ad litem). In addition they will have to attend two hearings instead of just one (usually can be done in only one Court appearance, even though two separate and distinct hearings are conducted).
A few people do not sign a proper Will because they erroneously believe that their estate is not large enough to need a Will. That belief is not true. Even if the total of your estate is just your home, probate is probable. We are fortunate in Montgomery and Harris counties to have many qualified attorneys to assist you in expressing your wishes in a Will, thereby saving your heirs headaches after you die. You are encouraged to find an attorney of your choice to conduct at least some basic estate planning.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see – www.houstontxprobate.com.
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JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, TX 77014