Key Takeaways
- Texas Estates Code Chapter 201 describes how assets should be distributed when an individual dies without a will, guiding the process known as intestate succession.
- Intestate succession is the process of determining how to distribute assets to related heirs of the decedent based on the line of succession.
- To prove heirship, an interested party may need to provide evidence of their relationship to the decedent through documentation, like a birth certificate or a paternity test.
- Common challenges related to intestate succession involve determining heirship and understanding how unique family dynamics come into play.
Introduction
Texas Estates Code Chapter 201 guides the process of how an estate should be administered if a deceased individual did not leave a will. When an individual does leave a will, their estate assets will be distributed to beneficiaries according to the instructions they describe in the document, based on their wishes. However, when there is no will, the process must proceed differently. The process may also apply in the rare circumstance when an individual leaves a will that fails to distribute part of their estate.
In the absence of a will, assets will be distributed according to a process known as intestate succession, where heirs are determined by state law. Texas Estates Code Chapter 201 provides legal clarity for how this probate process should work in Texas, outlining the rights of heirs depending on their relationship with the decedent. Understanding this section of the Estates Code is essential for gaining insight into inheritance rights and the steps involved in the estate administration process.
Overview of Texas Estates Code Chapter 201
The Texas Estates Code governs all matters relating to wills, probate, and general estate administration in Texas. The Code outlines the procedures for the creation, execution, and administration of estates in Texas. Chapter 201 of the Texas Estates Code specifically addresses how to determine an individual’s heirs when there is no will.
Intestate Succession
Intestate succession is the process of distributing assets to legal heirs based on established rules that determine which family members become heirs and how much of the estate they are entitled to inherit. In Texas, these rules are detailed in Chapter 201 of the Estates Code.
In the Estates Code, the following individuals have rights to inherit as intestate heirs:
- The deceased’s surviving spouse
- The deceased’s children
- The deceased’s grandchildren born to children who died before the deceased
- The deceased’s surviving parents, if the deceased left no descendants
- The deceased’s surviving siblings, if the deceased left no descendants and at least one parent died before the decedent
- More distant heirs, such as grandparents, cousins, nephews, and nieces, if the decedent left no surviving children or parents
This legal line of succession provides a formula for determining an individual’s intestate heirs, but every family circumstance is unique. Ultimately, there are a variety of factors that may influence the line of succession, such as the family relationships of the surviving heirs and the types of property a decedent leaves behind. These factors may affect family members’ inheritance rights and the percentage they stand to inherit.
Community vs. Separate Property
Texas is a community property state, which means that there are two types of property that a married individual can leave behind: community property and separate property. Understanding these distinct types of property is especially important for determining the legal right that a spouse has to inherit from an estate. Conversely, a finding of separate property may increase the inheritance of the non-spousal heirs.
The determination of community or separate property is often disputed and involves a complex set of rules with many nuances and exceptions. It is important to consult with a Texas probate lawyer to determine whether an asset counts as community or separate property.
Real vs. Personal Property
The inheritance of intestate heirs may depend on whether the deceased left real property, personal property, or a combination of both. As a basic explanation, real property refers to land, improvements such as residential and agricultural structures, and mineral rights. All other assets count as personal property, including cash, vehicles, intellectual property rights, investment accounts, and ownership of a business. Similar to the community and separate property issue discussed above, an heir’s inheritance of a particular type of asset may increase or decrease depending on whether that type of asset counts as real or personal property.
Determining Heirship
Only heirs may claim an inheritance if the deceased did not leave a will. An heir’s inheritance rights will be established at an heirship proceeding and the ensuing heirship judgment will be entered by the court.
How Do You Prove You Are an Heir?
You can prove you are an heir by opening an heirship proceeding at your county’s probate court. If you open the proceeding yourself, you will file an initial document called an Application for Heirship Determination, in which you list the individuals whom you believe are the heirs of the deceased person. Alternatively, you can intervene in a preexisting heirship proceeding to assert your inheritance rights. The probate court will typically receive the testimony of individuals who knew the deceased but have no financial interest in the estate. In uncontested cases, probate courts often enter heirship judgments based on that testimony alone.
In other cases, and particularly if heirship is challenged, the probate court will require scientific evidence like a paternity test, documentary evidence like a birth certificate, or even expert testimony. If you are trying to establish your status as a common-law spouse or common-law adopted child, then you will likely need additional evidence.
After gathering the appropriate evidence for your case, you will need to present this evidence before a judge during a hearing for official recognition of heirship. The probate court will consider whether this evidence is strong enough to establish your heirship and, if so, enter an heirship judgment that establishes you as an heir and assigns you inheritance rights to a percentage of the deceased’s real, personal, community, and separate property.
Legal Steps in Heirship Proceedings
An heirship proceeding is a court process used to determine the heirs of a deceased person who died without a will. In some cases, an heirship proceeding is necessary even though the deceased died with a will. For example, the will may leave the deceased’s investment account to “all my lawful children equally,” but then a dispute arises over who counts as a lawful child. In those instances, heirship proceedings may be necessary even though the decedent died with a will.
Heirship proceedings typically involve the following steps:
- An Application for Determination of Heirship – An interested party will submit an application that includes facts about the decedent, the decedent’s passing, and the family history of potential heirs.
- Appointment of an Attorney ad Litem – The probate court will appoint a local attorney to serve as attorney ad litem, often known by the initials AAL, for the deceased’s unknown heirs. The role of the AAL is to vet the accuracy of the applicant’s heirship facts, identify any individuals who may have an heirship claim but are not listed as heirs in court filings, and notify the missing potential heirs so they have an opportunity to participate in the heirship proceeding. The AAL also often presents a report to the probate judge, in which the AAL makes a recommendation as to whom the court should find to be the deceased’s heirs.
- Discovery Process – If the heirship is contested, then the court may enter a scheduling order that allows the parties to conduct written discovery requests and oral depositions. Parties may also send subpoenas to outside individuals and companies for additional records. This is called the discovery process. Parties then use the information they obtain to support their heirship claim—or oppose the claim of another person.
- Attending a Hearing – Interested parties will have the opportunity to attend a probate court hearing to demonstrate their relation to the decedent and provide evidence for their right to an inheritance. As a minimum requirement, a party must present the testimony of two individuals who have no financial interest in the estate but have personal knowledge of the deceased’s family.
- Judgment Declaring Heirship – The court will issue a judgment declaring heirship that names legal heirs and clarifies what percentage of assets they should receive.
Once the heirship proceeding has been completed, the estate administrator can continue on with administering the estate based on the officially established legal heirs. In other circumstances, probate courts schedule heirship hearings to coincide with the appointment of an administrator, which allows for efficient handling of both issues at once. In addition, it is often necessary to determine whether an individual is an heir before the court appoints that individual as the estate administrator.
Can You Contest an Heirship Proceeding?
Yes, an interested party in an estate can contest an application to declare heirship by participating in the heirship proceeding. Any person who claims a financial interest in the estate, including persons named as heirs on any heirship application, may participate in the heirship proceeding.
If you contest an heirship proceeding, you should have established evidence to contest an individual’s heirship. If you are seeking to establish yourself as common-law spouse or your minor child as a common-law-adoptee, then you will need as much evidence supporting your claim as possible.
Ultimately, the alleged heirs will present competing evidence to establish their heirship, so if you have reason to believe an individual should be disinherited from an estate, it will be crucial to have counterevidence to demonstrate why. If you are planning on contesting a proceeding, you should contact a skilled probate litigation attorney for guidance on the most appropriate next steps and the most critical types of evidence to obtain.
Special Considerations
Varying family dynamics may affect the line of intestate succession for who should receive assets. If your family dynamics involve unique circumstances, you should consider the following factors.
Blended Families
A blended family consists of a couple who brings a child or children into the family from previous marriages. A blended family is often also referred to as a stepfamily, as it consists of the parents and their stepchild or stepchildren.
Blended families may include children from the current relationship, but also include at least one child from the current marriage, which can complicate inheritance rights. The inheritance percentages of any particular heir may change depending on whether the heir is a full- or half-sibling of the deceased. If a decedent remarries, the deceased biological children may receive an increased share of the estate.
Blended families can include biological children, adopted children, and stepchildren, which will require considering the inheritance rights of biological and adopted children vs. stepchildren according to the laws of intestate succession. For example, stepchildren may claim heirship status by alleging common-law adoption, which is also known as adoption-by-estoppel, equitable adoption, or informal adoption.
Missing or Unknown Heirs
The presence of missing or unknown heirs may raise questions about how to distribute assets from the estate. If any heirs are considered missing or are unknown, then the administrator of the estate will be responsible for doing their due diligence to locate or notify them. In these cases, the heir has the same right to an inheritance under state law as any other heir as long as they are able to demonstrate their relation to the decedent.
Administrators and heirship applicants should do their best to locate the missing individuals. In all heirship proceedings, certain public notices must be posted, and potential heirs must be notified. If the heirship applicant has difficulty serving an heir with notice of the proceeding, they can seek the court’s permission to use a different method of service—for example, a classified ad in a local publication .However, if all these efforts are unsuccessful, then the share of an inheritance may be distributed to the Texas Unclaimed Property Fund. The interested party can then file a claim with the state Comptroller’s office to access the inheritance. Similarly, the administrator may interplead the missing heir’s cash inheritance into the registry of the probate court for safekeeping until the heir surfaces and claims their inheritance.
In theory, the probate process will be public, and all potential heirs should receive notice under Texas Estates Code sections 202.051 to 202.056. In summary, the heirship applicant must serve the following notices of the heirship proceeding:
- Specific service of citation on all named heirs that are at least 12 years old and the parents of children aged 11 and under;
- public notice of citation by publication in a newspaper or other periodical situated where the probate proceeding is filed;
- public posted notice in the county records; and
- personal service on specific heirs selected at the discretion of the probate court.
Contested Relationships
If there are questions about the relationship of an interested individual to the decedent, then there may be a contest of heirship. For example, an estranged or nonmarital child may claim that they have a right to an inheritance despite other relatives being unaware of the individual’s relationship to the decedent. A romantic domestic partner of the deceased may claim to be a common-law spouse. Unrelated children whom the deceased treated as biological children when they were minors may claim the same inheritance as the decedent’s biological children.
During an heirship proceeding, an individual will provide evidence of their relation to a decedent for their right to an inheritance, and other interested parties will have the chance to contest. In cases involving the special relationships described above, the competing parties must accumulate as much evidence as possible to prove their allegations. Ultimately, the probate court will decide whether a disputed heir has a right to an inheritance based on the evidence presented through the procedures described above.
Rights of Specific Individuals in Texas Intestate Succession
State laws established in the Texas Estates Code outline the rights of individuals to an inheritance depending on their relation to the decedent. The following sections address the rights of relatives to receive an inheritance.
Common-Law Spouses
Texas considers common law marriages, also known as informal marriages, to have the same legal standing as a formal marriage. Given the recognition of common law marriage as a valid and legal method for marrying in Texas, common-law spouses have the same legal rights to an inheritance as a legal spouse.
A common-law marriage is any marriage where the couple:
- Agreed to be married
- Lived together in the state as husband and wife in Texas
- Represented to the others in their community that they were married
An opposing party may present evidence to contradict those requirements. For example, the deceased’s child may rely on a neighbor’s testimony that the deceased always introduced his spouse as his fiance or his girlfriend, rather than his wife. Texas recognizes common law marriages as legitimate legal partnerships between two individuals in a couple. In some cases, common law marriages may lead to disputes from other interested parties who may want to discount the spouse’s right to an inheritance. In these cases, it will be important to engage a probate litigation attorney who can help establish the spouse’s right to an inheritance.
Adopted Children
Adopted children who are formally and legally adopted are considered legal heirs to their adoptive parent’s estate. According to Texas Estates Code section 201.054, an adopted child is considered a legal child of the adoptive parent, meaning that the adopting parent and their descendants can also inherit from an adopted child. The adopted child has the same legal rights to an inheritance as any other natural child. In addition, adopted children often retain inheritance rights from their biological parents, depending on the rulings contained in the family court’s adoption decree.
Stepchildren and Common Law Adoptions
By default, stepchildren who are not adopted do not have a legal right to an inheritance under Texas state law if they are not provided for in a will. Stepchildren are not part of the line of succession described in Estates Code Chapter 201. Stepchildren may have a claim to be adopted-by-estoppel, however, if they can prove the following facts:
- There was an agreement to adopt the non-biological child
- The deceased and the child lived together while the child was a minor
- During that time, the deceased treated the child like a biological child, and the child treated the deceased like a biological parent
If stepchildren are part of the family and you would like them to receive a share of an inheritance, it will be crucial to consider this during the estate planning process. Otherwise, they may face a difficult or unrealistic burden of proving common-law adoption.
Probate Administration and Heirship
Establishing heirship is an important part of the probate administration process. After heirs are established, the estate administrator has the information necessary to complete administration of the estate and distribute its property to the deceased’s heirs. If an administrator wishes to open a streamlined and efficient independent administration, the administrator must first establish that all heirs agree to this arrangement, as further discussed below.
Independent vs. Dependent Administration
Probate administration in Texas falls into one of two buckets: independent and dependent administration. The key difference between these two processes is the level of involvement by the courts.
Independent administration involves little court oversight, providing the appointed estate administrator with more freedom to take action involving the estate, such as selling property. Instead, the court will only need to approve the independent administrator’s inventory and fulfill a few minor functions. With less court involvement necessary, the independent administration process is typically faster and less costly than dependent administration.
Meanwhile, dependent administration involves considerably more court oversight. Under dependent administration, most actions taken by the estate administrator, such as selling property, paying creditors, or shutting down the estate must be closely supervised by the court.
If all established heirs agree, then the administration process can proceed through independent administration. However, most probate courts will create an independent administration unless the identity of the decedent’s heirs has been established. The probate court may also decline to create an independent administration, even if all heirs agree, if the court is concerned that the administrator is not competent or trustworthy, or if an estate creditor has raised a concern about the preservation of estate property.
Role of Probate Attorneys
A probate attorney is an invaluable resource in cases of intestate succession. Given the potential challenges and unique circumstances that can arise during intestate succession, a probate dispute or administration attorney can offer guidance and support to allow for a smooth heirship process or to prevent improper heirs from claiming an inheritance.
These layers of support may include offering guidance for next steps in probate, how to navigate the necessary processes, evaluation of a disputed heirship claim, and what to expect from estate administration. If a dispute arises, then a probate litigation attorney may be able to help you establish whether you have grounds for a lawsuit, gather evidence for a case, and represent you in court.
Challenges and Complexities
Estates that involve intestate succession often face several challenges due to the potential disagreements that can arise without a will. Challenges and complexities involved with the Texas Estates Code might include the following.
Navigating Legal Landscapes
The legal landscape of intestate succession can be difficult to navigate, as it can be difficult to understand the legal line of succession and interpret how property should be distributed without a clear will to offer instructions and prepare beneficiaries for what to expect. The Texas Estates Code does not clearly state all heirship criteria in one place; in essence, Texans must cobble together several different sections to learn the rules about who can be an heir. Especially in unique circumstances such as having a blend of community property and separate property or having multiple family members, understanding how the Estates Code may apply to your estate can be a challenge.
A skilled Texas estate administration attorney can provide considerable guidance in understanding Texas Estates Code Chapter 201 and offering insight into what to expect. If there are ambiguities in the process, an attorney can provide perspective on how the Estates code may apply to your unique situation.
Ensuring Fair Asset Distribution
Ensuring fair asset distribution through the rigidity of state law can be difficult, especially if adverse family members of the decedent had their own expectations to receive an inheritance. When assets are distributed according to state laws, there is little room for flexibility, which may cause conflict, especially if beneficiaries had different expectations.
Fair asset distribution will be determined solely according to state law. However, heirs may not be happy with the distribution terms set by state law. It’s always a good idea to engage in estate planning as soon as possible in order to prevent disputes during estate administration and ensure that no legal heirs are caught off guard.
Navigate Texas Estates Code Chapter 201 With RMO Lawyers
Texas Estates Code Chapter 201 describes the process of intestate succession in Texas, explaining how assets should be distributed during probate if an individual did not leave a will. If your loved one died without a will and you are in the process of settling their estate, you should contact a skilled probate administration attorney as soon as possible for guidance regarding next steps.
The team of probate administration attorneys at RMO Lawyers. With decades of experience in navigating the ins and outs of probate in Texas, our attorneys are prepared to help you ensure the proper administration of your estate and seek your rightful inheritance. If there are any issues that arise during the probate and estate administration processes, then our probate litigation attorneys may be able to help.
Schedule a consultation with the team at RMO to discuss your case and the proper steps to proceed.
Glossary
Community Property – Income earned by either spouse during marriage and the property acquired with that income is considered to be owned by both spouses equally, with a 50% claim to ownership by both spouses upon one spouse’s death.
Heir – An individual who has a legal right to receive an inheritance from a deceased individual’s estate in the absence of a will is considered an heir.
Intestate Succession – The process of distributing assets to an individual without a will.
Intestacy Laws – A section of a state’s estates code that describes how assets should be distributed to heirs in the absence of a will based on a clear line of succession.
Separate Property – Any property acquired by a spouse prior to marriage, along with gifts and inheritances received by that spouse during marriage, is considered to be owned solely by the spouse that acquired it. That said, the surviving spouse will have an inheritance interest in the deceased spouse’s separate property if the deceased spouse died intestate.