Texas Probate When There is No Will

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Probate Law without a Will

The process for probating an estate when there is no will is similar to probating a will. There are several notable differences, including the heirship proceeding and the attorney ad litem. To start the probate court process, the applicant will file the following documents:

Application to be appointed,
Application for heirship determination (which is usually combined with the application to be appointed), and
Motion and order to appoint an attorney ad litem.

The Heirship Application under the Texas Estates Code

The heirship proceeding is a court hearing to establish who the decedent’s heirs are and what interest each has in the estate. To have an heirship proceeding, the person must be dead. In Pollock v. Wuntch, 116 S.W.2d 796 (Tex. App.‒Texarkana 1938), the court says that a court cannot determine heirship for someone who is still alive.

Texas Estates Code § 202.002 authorizes the court to determine heirship when:

A person dies without a will and there has been no probate administration in Texas for the estate or
There has been a will probated in Texas or another state but property in Texas was omitted from the will or other probate.

The heirship proceeding starts with the filing of an application with the county clerk. The application asks the court to determine heirship. This proceeding can be, and often is, combined with the application for letters of administration.

The application can be filed by the personal representative or a creditor of the estate. Texas Estates Code § 202.005 says that the application has to include:

The decedent’s name;
The decedent’s date and place of death;
The names and addresses where service can be had on the decedent’s heirs, the relationship of each heir to the decedent, whether each heir is an adult or minor, and the true interest of the applicant and each of the heirs in the decedent’s estate;
A statement that: (1) The decedent died without a will, (2) All of the children born to or adopted by the decedent have been included in the application, and (3) Each of the decedent’s marriages has been included in the application;
The name of the decedent’s spouses and the date and place of termination of any marriages and any other facts to show whether a spouse has had an interest in the decedent’s property; and
A general description of all property belonging to the decedent or held in trust for the benefit of the decedent.

If some of this information is not known, the application should include all material facts and circumstances that the applicant has knowledge of as an explanation for the omission.

Texas Estates Code § 202.007 also says that the application has to include an affidavit. The affidavit has to state that, to the applicant’s knowledge, all the allegations in the application are true and no material fact or circumstance has been omitted from the application. The affidavit should also include a jurat wherein the applicant swears to the information included in the application. In Turner v. Nesby, 848 S.W.2d 872 (Tex. App.‒Austin 1993), the court confirms that the application that omits this sworn statement can be defective.

Texas Estates Code § 202.0025 confirms there is no time limit for asking the court to determine heirship. An applicant can ask the court to do so at any time after the decedent’s death. Texas Estates Code § 202.006 imposes a four year limit on the court’s ability to request the court determine whether there is a need for an administration of the estate. The four year period starts from the date of the decedent’s death.

The following persons must be made a party to the heirship proceeding:

the decedent’s unknown heirs,
each person who is named as a heir in the application, and
any person shown as owning a share or interest in real property evidenced by a deed that has been filed in the real estate records who are identified in the application.

These persons should be named in the application.

Citation and Waiver procedures

Texas law requires notice be provided to certain parties. This notice is referred to as “citation” and providing the notice is called “service.” Texas Estates Code § 202.055 provides that this citation does not have to be served on any party who enters an appearance in the case or who files a waiver of citation.

In heirships where the parties are all in agreement, it is common for the parties to file waivers of citation and the waivers say that the party is entering into an appearance in the case.

Texas Estates Code § 202.056 provides that a parent, managing conservator, guardian, attorney ad litem, or guardian litem of a minor younger than 12 years old can waive service of citation. They may not do so for a minor who is 12 years or older. The minor who is 12 years or older can waive citation.

Absent a party entering an appearance in the case or signing a waiver, Texas Estates Code § 202.051 provides that a citation must be sent to the following persons by registered or certified mail:

each distributee who is 12 years of age or older whose name and address are known or can be ascertained by reasonable diligence and
the parent, managing conservator, or guardian of each distributee who is younger than 12 years of age whose name and address are known or can be ascertained by reasonable diligence.

The probate court can require service of citation by personal service.

If the address cannot be ascertained, citation must be served by publication in the county in which the proceeding is commenced and in the county of the last residence of the decedent who is the subject of the proceeding.

Absent posting by publication, the citation has to be posted in the county in which the probate is commenced and the county of the last residence of the decedent. The county clerk will generally take care of this requirement once the application is filed.

Notice by Publication Requirements

For the unknown heirs, publication is also required in the county of the last residence of the decedent who is the subject of the proceeding.

Affidavit of Service of Citation

Texas Estates Code § 202.057 provides that the applicant has to file a copy of the citation and proof of delivery of service. This is typically done by filing the return receipt requested or the proof of publication by the newspaper with the county clerk. Most newspapers will file this with the county clerk as a matter of course.

The applicant also has to file a sworn affidavit to certify that the citation was served or waived as required. This is often accomplished by the probate attorney filing an Attorney Certificate of Service of Citation with the county clerk.

The Attorney Ad Litem

The attorney ad litem is an attorney appointed by the probate court to represent the interests of any minors or other person who has a legal disability, a nonresident, an unborn or unascertained person, an unknown or missing heir, or an unknown person for whom cash was deposited into the court’s registry.

The probate court can appoint an attorney ad litem on its own volition. In most cases, the attorney ad litem is appointed on request of the person seeking to be appointed. The applicant starts this process by filing a Motion to Appoint an Attorney Ad Litem and asking the probate court to enter an order appointing the attorney. This is typically filed along with the probate and heirship application.

The attorney ad litem will file a general denial to the application that was submitted. This is just a formality. The denial asks that the applicant prove each fact stated in the application.

The attorney ad litem will also reach out to the applicant’s attorney to obtain the following information:

obituary for the decedent,
marriage licenses for the decedent (for current or former marriages, if any)
death certificates (for the decedent and predeceased children if any),
birth certificates (for any children both living and deceased including adopted children), and
information about the two disinterested witnesses (name, address, phone number, email if any, and relation to the decedent, and years known)

The ad litem will use these records to conduct the investigation to locate missing heirs. The attorney ad litem will contact the applicant and witnesses to get comfortable with their qualifications to serve as witnesses, their knowledge of the decedent’s family relationships and circumstances, and whether the information in the applications appears correct. This investigation is required. The court will not have the hearing to appoint the applicant if the attorney ad litem is still conducting their investigation.

The decedent’s estate bears the cost of paying for the attorney ad litem. The amount of the attorney ad litem fee is at the court’s discretion. The court in Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728 (Tex. App.‒Texarkana 1996) stated that the attorney ad litem fee has to be reasonable in light of:

the time and labor involved,
the nature and complexities of the case,
the amount of money involved,
the attorney’s responsibilities,
whether the attorney lost other employment because of the appointment,
the benefits the client received,
contingency or certainty of compensation, and
whether the employment is causal or for an established or constant client.

The fee that is deemed to be reasonable can vary from one court to the next. By way of example, the typical fee for an uncontested probate in Harris County ranges from $500 to $1,000. This fee is typically paid by the applicant out of the decedent’s funds after the heirship proceeding is completed.

It should also be noted that applicants often have difficulty working with the attorney ad litem. The most common complaints include the delay in carrying out their investigation and disputes over the attorney ad litem’s fee. The probate court has the ability to remove the attorney ad litem. The Coleson v. Bethan, 931 S.W.2d 706 (Tex. App.‒Ft. Worth 1996) case provides an example of this. The court entered an order on its own volition to remove the attorney ad litem due to discord and conflicts between the minor and the minor’s parents.

The Probate Application

The personal representative has to file an application with the county clerk to ask to be appointed as the personal representative.

This application is asking for letters of administration. The application is similar to the application filed when there is a will. There are some differences. Specifically, the application for letters of administration has to provide information about the decedent’s family members and heirs to establish that the family history and entitlement to distributions therefrom. It also has to state that the decedent died without a will.

The Court Hearing to get Letters of Administration

Heirship and application to be appointed are typically handled in one hearing. The probate attorney will generally start with the heirship determination and then move to the application to be appointed.

The heirship determination typically includes oral testimony of two disinterested witnesses. The probate attorney will question the witnesses. The line of questioning may go something like this:

Attorney: Your honor, I would like to question WITNESS 1.

Attorney: Please state your name for the court.

Witness: _______________.

Attorney: How were you acquainted with the decedent?

Witness: _______________.

Attorney: Are you familiar with the decedent’s family and living arrangements?

Witness: _______________.

Attorney: To the best of your belief, did the decedent die on [Date of Death] in [Name of County] County at the age of [Age at Death].