determination of heirship

If your loved one died without leaving a will, then there are no instructions as to who they want their property to go to and who their heirs are. Luckily, the State of Texas, in CHAPTER 201 OF THE TEXAS ESTATES CODE steps in and states who the heirs are and what shares they receive of the estate. If Intestate, a determination of heirship is required before a court created Independent Administration or Dependent (supervised by the Court) Administration can be opened.  A determination of heirship may also be needed when the Decedent left a will, but the will did not include all property owned, meaning a partially intestate estate.

dependent (supervised by the court) administration

If all the heirs do not agree to the designation of a qualified Independent Administrator, but there is a need for administration of the estate, the Court will appoint a Dependent Administrator of the Estate. These are typically very expensive and time consuming when compared to an Independent Administration. In Brian’s experience, a Dependent Administration usually occurs when the heirs are hostile towards each other, when an heir cannot be found, is incapacitated, or is a minor. If intestate, a Dependent Administration is coupled with a Determination of Heirship.

small estate affidavit

If all of the heirs, debts, and property of the estate is known and:

1. The assets of the estate, excluding homestead property, are not more than $50,000.00; and
2. No petition for appointment of a personal representative is pending or has been granted; and
3. The Decedent did not apply for or receive Medicaid benefits after 2004; and
4. Thirty (30) days have passed since the Decedent died; and​
5. The Decedent died without leaving a will.

The small estate affidavit is usually used when there is a small amount of money in a financial institution, but no other assets. It is very important to check with the bank prior to retaining Brian in order to find out if the financial institution will accept the small estate affidavit because many will not.

Brian will prepare a small estate affidavit which includes all debts, property, and heirs of the estate. The small estate affidavit is then signed by two disinterested witnesses who are familiar with the Decedent’s family history and have no interest in the outcome of the estate.

The small estate affidavit must be correct as every person signing it could be liable for and mistakes. The affidavit is then filed with the Court who will review it. A hearing may be needed.

If approved, the Court will sign an order approving the small estate affidavit. There is no administration opened and no personal representative appointed with a small estate affidavit.

court created independent administration

In order for a court created independent administration to be opened, all of the heirs must agree to an Independent Administration and Designate a qualified individual to be the Independent Administrator of the estate. A Determination of Heirship is also needed. The Court will first determine the heirs and then appoint the designated qualified Independent Administrator to manage creditors and distribute the remainder of the estate to the heirs. 

To Determine the Heirs and Create an Independent Administration:

1. The Decedent must have lived within the counties we serve;

2. There must be no contest or opposition to the proceeding;

3. There must be no will;

4.The designated Independent Administrator must be able to qualify;

5.The Decedent must not have qualified for or received Medicaid benefits after 2004; and

6. No minors, incapacitated individuals, unknown individuals, or individuals with a legal disability may be involved in the matter.

affidavit of heirship

The Affidavit of Heirship is the least expensive type of intestate probate and is usually used only to establish title to real property.

If all of the heirs, debts, and real property is known, and:

1. The Decedent died without a will; and
2. No petition for appointment of a personal representative is pending or has been granted; and
3. No formal administration is necessary.

Then, an affidavit of heirship might fit your probate needs. It is signed by two disinterested witnessed and one family member or heir. It is then filed in the deed records of the county where the real property is located.