This article is third in a series on what to consider and steps to take when planning for preservation of your estate and affairs or those of a loved one. Related articles:
What Happens When You Die —
While there is great wisdom in preparing your testamentary documents early in life — and updating them regularly after major life changes — sometimes “life” does not give you the opportunity to get those documents drafted or finalized by the time they’re most needed. We’ve discussed in previous installments the process for probating a valid Will and the (slightly more complicated) process for probating a copy of a Will. When there is no Will involved, though, we must look at a separate set of processes than your typical application for probate, which can involve a slower process with more moving parts. However, with an experienced attorney as your guide, the no-Will probate can still proceed without issue.
Intestate Decedent / Intestacy
When a person dies without a Will, they are said to have died “intestate.” This is not uncommon, and specific provisions are made for intestacy in the Texas Estates Code. The Texas Estates Code is our guide for all probate matters. It is especially important to follow the code closely in more complicated probates, such as when a person dies intestate.
Start With a Determination of Heirship
Those who’ve read the last article may be familiar with the first step of probating without a Will: filing an Application for Determination of Heirship. As the name implies, the purpose of a determination of heirship is to identify all the living heirs of a decedent. This is a critical step. When the decedent did not leave a Will dividing his estate, the court must make the division instead. It is the court’s duty to divide the decedent’s estate fairly and by the letter of the law, so that each living heir is granted the inheritance to which they are legally entitled.
The Determination of Heirship is crucial because it will, through an investigative process, identify any unknown heirs and ensure their interest(s) in the estate are represented. To this end, the court will appoint an attorney ad litem.
Attorneys ad Litem and Genealogy Experts
An Attorney ad Litem is an attorney selected randomly by the court from a roster of attorneys who have been trained and certified for the job. The Attorney ad Litem will communicate with the decedent’s living family members, check vital records (such as birth, death, marriage, and adoption records) for information on the decedent and his family history, and essentially find or ensure the nonexistence of any additional heirs to the decedent’s estate.
Sometimes, however, a family tree may be bigger than one ad litem can handle. In cases where a decedent has had numerous children (by one or numerous partners) and those children have gone on to have numerous children of their own, calling in an expert in genealogy may be necessary. While experts are an expensive addition to the probate process, their services are occasionally essential to ensuring all heirs are named and accounted for in the heirship process.
Attorneys ad litem (and the genealogy expert, if retained) are expected to testify as to their findings before the court as part of the prove-up process for the decedent’s estate.
Court-Created Independent Administrations
In tandem with the Determination of Heirship, you might apply for a court-created independent administration. Since there is no existing Will for which to request the appointment of an independent executor, an applicant can instead request the court to create one, to enable an easier distribution of the decedent’s estate. This is especially useful in a probate where all heirs are reasonably known and agreeable, as the application for court-created independent administration requires each heir to agree as to the appointment of the independent executor. If heirs disagree, a court-created independent administration may not be appropriate or even possible.
If the court approves the application for court-created independent administration, the appointed executor must go through the typical probate process previously described: attend a prove up hearing wherein the facts are recited; if approved, take an oath to faithfully distribute the estate; and act properly as the executor of decedent’s estate.
Proving Up Decedent’s Estate: Testimony and Affidavits of Heirship
The determination of heirship process is as follows: first, the application and motion for Attorney ad Litem is filed; once the application and motion are received, the court will order the appointment of an Attorney ad Litem. The ad litem begins an investigation. Meanwhile, the probate attorneys will prepare the other fact witnesses to the case. To prove up an intestate decedent’s estate, you must have two witnesses who are not related to the decedent and who have no financial interest in decedent’s estate. These two witnesses must have personal knowledge of decedent’s life and family history, so as to testify before the court about the decedent’s heirs. The attorney ad litem and the genealogy expert (if one was necessary) will also testify before the court about their findings. If you are also filing for a court-created independent administration, you can likely bundle the hearings so that all your witnesses need only appear once.
Once the court has heard all the necessary testimony, it will make a ruling identifying the heirs of decedent’s estate. Additionally, the court will rule on the distribution of property to each heir, per the rules in the Texas Estates Code.
While an updated, valid Will is your best defense against a long and troublesome probate, intestacy is not an impossible situation. An experienced attorney will help you navigate the complexities of probate without a Will, and ensure the best path forward for all members of decedent’s family.
