Resources › Texas Determination of Heirship
Start With the Procedure
Is a Determination of Heirship the Proper Procedure?
A determination of heirship is one of several possible Texas probate procedures. The correct procedure depends on whether a valid will exists, whether an administration is needed, which property is involved, the family history, and other facts affecting succession.
A determination of heirship can be used in an authorized proceeding to identify a decedent's heirs and their respective shares and interests. It is not a universal substitute for probate or administration. A will can also create an heirship issue when it does not effectively dispose of all property. In an appropriate case, probate of the will and a determination of heirship may both be required.
Educational Resource — Not a Filing Form
The annotated document provided here is not a fill-in form, is not intended for filing, and is not legal advice. The reader or user should consult with a lawyer to determine the proper procedure, allegations, proof, citation, parties, requested relief, and local filing requirements for the particular estate.
Heirship Analysis
Facts That Determine the Heirs and Their Shares
Heirship can require proof of marriages, children by birth or adoption, descendants of deceased children, parents, siblings, and more remote family branches when nearer classes are absent.
A decedent may have left a will that was never offered for probate, a will may fail to dispose of all property, a devise may fail, or another circumstance may create a partial intestacy. The existence of a will does not automatically eliminate an heirship issue.
Community property, separate real property, and separate personal property can pass differently under Texas law. Homestead rights, exempt property, nonprobate transfers, and property outside Texas can also affect the analysis.
Unknown heirs, missing heirs, minors, incapacitated persons, deceased relatives, and persons whose addresses cannot be located can affect citation, service, representation, and appointment of an attorney ad litem.
Application and Evidence
The Application Is Only the Beginning
Texas Estates Code Section 202.005 specifies information that an application for a proceeding to declare heirship must state, including the decedent's death information, heirs and service addresses, family relationships, marriages, children, the disposition of any will, property subject to the requested judgment, and an explanation for required information that is omitted.
Section 202.007 requires each applicant to support the application by affidavit. The Firm's website sample intentionally does not include an affidavit. Citation, publication, personal service, attorney ad litem work, witness testimony, documentary proof, and a legally sufficient judgment are separate parts of the proceeding and can depend on the facts.
Local Practice
Harris County and Self-Representation
Harris County's posted Pro Se Applicants Policy states that individuals applying for determinations of heirship must be represented by a licensed attorney. Harris County Probate Court No. 4 also states that attorney representation is recommended for all legal matters. Other Texas counties may have different local policies concerning self-represented applicants, so the current requirements of the particular court should be checked.
Annotated Document
Illustrative Texas Heirship Application
The Firm's annotated application illustrates why heirship cannot safely be reduced to a generic family-tree form. It addresses family and marital history, property characterization, partial intestacy, notice, attorney ad litem issues, and procedure selection.
Illustrative and annotated Texas document. Not a form and not for filing.
View annotated PDFRelated Resource: Probate of a WillA will and an heirship proceeding can intersect when the will does not effectively dispose of all property or other facts create partial intestacy.
Read probate guidanceCurrent sources: Texas Estates Code Chapter 202 and Harris County Probate Court No. 4 Frequently Asked Questions. Harris County also publishes a Pro Se Applicants Policy. The linked authorities should be checked for later amendments or local changes.