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Proceeding to Determine Heirship

If you die without a will, then it’s the State of Texas that determines who will be your heirs. This state-imposed arrangement is one of the many problems suffered by those left behind. For example: Suppose John Doe dies without a will. His wife, Jane Doe, then tries to access a bank account that is in John’s name. Since there is no payable on death beneficiary listed on the account, the bank won’t allow her access. Why? Just ask yourself: How does the bank know John and Jane were legally married? Ah, but Jane shows the bank manager a marriage license. Still, the bank manager says that a marriage license doesn’t prove they were never divorced! In sum, pre-planning is the best way to avoid this and other similar difficulties; and a will is an excellent means of planning for an inevitable future event.

Similarly, how does the bank know whether John had children born outside of his marriage to Jane? Under Texas law, such children may be entitled to a share of the estate. Often, to protect itself, a bank may require a court order which definitively lists the heirs. Oftentimes what the bank wants is: a “Judgment Declaring Heirship.”

To obtain a Judgment Declaring Heirship, our Applicant, Jane, must file a lawsuit called a “Proceeding to Determine Heirship.” In this proceeding, she will list basic information about her deceased husband, John, including the date of his birth and death, the date of their marriage, and any previous marriages, the names, birthdates, and addresses of his children, and, whether he was ever divorced. Each of John’s other heirs must either be served in person, or they must file a waiver stating that they have seen the application, and are waiving their right to be served. After the proceeding is filed, most courts will require that Jane request the appointment of an attorney ad-litem. The Ad-Litem’s job is to represent any “missing” heirs that Laura did not tell the Court about. Laura will also have to post a notice in the local paper that she has filed a proceeding to determine heirship. Then Jane will have to bring two witnesses, who are not related to her or John, and yet knew John well enough to be able to give testimony about any marriages, divorces, and children born inside or out of the marriage. At a scheduled court hearing, she will give evidence, as will the two witnesses, and the ad litem. Thereupon the Judge will enter a Judgment Declaring Heirship. This Judgment should recite all John’s heirs and the percentages which they should each receive of his separate and community property. In many cases, it will also list the property, and classify it as community or separate property.

If you have questions regarding this, or any other legal matter, please contact

Andrew J. Bolton, Attorney at Law, to schedule an appointment at either or Huntsville, TheWoodlands office at 936-435-1908. Sugar Land and Stafford residents may call 281-723-2791. Visiting or reviewing this blog does not create an attorney-client relationship. Information here should not be considered legal advice.