Executive summary
- A petition for determination of descent is a court petition that allows a descendant of a deceased individual to stake a claim to an inheritance from the estate based on their relation to the deceased.
- A person claiming descendancy or a personal representative of an estate have grounds to file a petition for determination of descent.
- The process for filing a petition for determination of descent includes writing a petition to the court, outlining the petitioner’s relationship to the decedent and attending a court hearing to present the case.
- In California and Texas, an excluded heir may petition the court and, if successful, may be entitled to some share of an inheritance depending on the type of claim they are making, the relationship to the decendent, etc.
Glossary
Heirship – The legal right to receive money, property, or other assets from someone who has died, either through blood or legal relationship.
Descendant – An individual related to a person, either as a child, grandchild, or another in the line of family succession.
Probate – The process in which a will is validated by the court and estate assets are distributed to heirs and beneficiaries named in the will or entitled to a distribution according to state intestacy law.
Intestate succession – The process in which estate assets are distributed by the probate court to the appropriate heirs according to state intestacy law.
Introduction
When a beneficiary or heir is either left out of a probate petition or believes they should be entitled to receive some benefit from an estate, they can file a Petition for Determination of Descent, also sometimes referred to as a determination of heirship. Through this petition, they can request that the court issue an order that they are entitled to receive a distribution from the estate.
California Probate Code § 11700 and Texas Estates Code §201.052 provide legal grounds for any person claiming to be a beneficiary or otherwise entitled to distribution of a share of an estate as an heir to file a Petition for Determination of Descent, also known as a Petition for Determination of Distribution Rights. In essence, this legal filing asks the probate court to determine who is entitled to receive what from an estate.
By understanding your options for filing a petition for determination of descent, you can stake your claim to a share of an estate you believe you are entitled to and avoid being excluded. It’s crucial to understand the steps of the process so that you can increase your chances of receiving your rightful claim to an inheritance.
What is a Petition for Determination of Descent?
A petition for determination of descent is a legal process that allows an individual who believes they are an heir of an estate to petition the court to recognize their right to a portion of the inheritance. This petition should include a statement that explains the basis of the petition and highlights the descendant’s relationship to the decedent.
A petition is often necessary if there is ambiguity regarding the descendant’s relation to the decedent and their right to inherit. The petition may be necessary in the following instances:
- Omission from the will: A decedent unknowingly omitted an heir from the will.
- No Will (Intestate Succession): The decedent did not leave behind a will, leaving the state to distribute estate assets through the process of intestate succession.
The following hypothetical case scenario may help illustrate some of the complexities that may arise in a real-world scenario. This example may highlight potential challenges as well as possible legal mechanisms and outcomes that can occur. However, every case is different, so it’s important to consult a skilled attorney regarding your situation.
James was the father of three children: Andrew, Lana, and Melissa. Years before passing, James had a falling out with his daughter Melissa and did not talk to her up until the time when she tragically passed away.
James passed away two years later, but he had left behind a will outlining his wishes for the distribution of his estate. In his will, he included his two children Andrew and Lana, the only two surviving heirs he was aware of, unaware that Melissa had a son, Cooper, his grandson.
Upon learning of his grandfather’s death, Cooper realized he might have a right to an inheritance as a direct descendant. Cooper filed a petition for determination of descent to stake his claim.
Who can file a Petition for Determination of Descent?
Under Probate Code § 11700, the personal representative or any person claiming to be a beneficiary or otherwise entitled to distribution of a share of the estate – i.e. an heir – can file a Petition for Determination of Distribution Rights at any time after letters of administration are first issued to a personal representative and before an order for final distribution is made.
Because Cooper is the individual claiming to be a beneficiary and believes he is entitled to the distribution, he had grounds to file a petition for determination of descent. As a grandchild, he has a legal right to a portion of the inheritance to his direct relation to Melissa, a daughter of the decedent.
The process for filing a Petition for Determination of Descent
Understanding the process for filing a petition for determination of descent is crucial for ensuring you have a valid claim that is heard by the court, increasing your chances of receiving an inheritance.
The process for filing the petition includes the following steps:
- This petition must be filed after the estate is opened but before it is closed – i.e. while the estate is still open and being administered.
- When filing a petition, you should include your basis for claiming heirship, such as explaining your relation to the decedent and providing any supporting evidence, like medical records, family photos, or communication records.
- Once a petition is filed, the court will schedule a hearing. Any interested person can file a written statement in support of or opposition to the petition before or at the hearing. If a person fails to respond to the petition in a timely manner, they likely will not be allowed to participate in the proceeding but likely will be legally bound by the court’s decision.
- At the hearing, the court will consider the petition and any responses and objections submitted by other interested parties. The court will issue an order either granting or denying the petition, which will guide the executor about who the persons are who are entitled to distribution.
- If the court decides that the petition is granted, the petitioning heir will be included as a part of the final distribution.
- The confirmed descendant will receive the distribution along with the other heirs.
If you receive a Petition for Determination of Distribution Rights or Descent as a beneficiary or interested party in an estate, it is crucial to consult a probate litigation attorney immediately who can help guide you about any steps to protect your inheritance and avoid an inheritance dispute if you believe that the petition is unfounded.
What is a Petition for Final Distribution?
A Petition for Final Distribution is a legal document that the personal representative files to officially close an estate. When this petition is filed, the court will schedule a hearing where the personal representative must provide detailed information about the condition of the estate, how the estate assets were used, and how the estate assets will be distributed through a final account and report.
The judge will review this final accounting to confirm that all the legal requirements have been met. If the judge determines that the estate has been administered appropriately, the court will issue an order for final distribution and close the estate. Once an order for final distribution is entered, the personal representative can immediately distribute the property in the estate to the qualified heirs entitled to distribution as ordered by the court.
Why is a Petition for Final Distribution important?
Once an order for final distribution has been issued, unless an appeal is filed, interested parties lose the right to challenge how the estate has been administered or how it’s going to be distributed. This includes the ability to file a Petition for Determination of Distribution Rights.
If you believe you have been wrongfully excluded from probate after a loved one’s death, you should immediately discuss your situation with a probate litigation attorney. You need to act as fast as possible because the time you have to file a Petition for Determination of Descent or otherwise participate in the probate process is limited. An experienced probate lawyer can help you quickly identify the best course of action you can take to protect your inheritance rights.
Cooper filed his petition for determination of heirship before the final distribution of assets was filed, which means that assets had not yet been distributed by the personal representative of the estate. In a court hearing, Cooper presented evidence of his relationship to his grandfather James, including birth certificates that proved him to be the son of James’s daughter, Melissa.
Ultimately, the court approved his petition, recognizing him as a valid beneficiary of the estate through his relationship to his mother and providing him with a right to an inheritance. As a result, Cooper was included in the final distribution of assets equal to the other children of the estate by the time the petition for final distribution was filed.
Differences in state law
The laws regarding a petition for determination of descent depend on the state. It’s important to understand how your state handles determination of descent petitions so that you understand your rights to stake claim to an inheritance.
California
California law covers the option of filing a petition under Probate Code §11700. The state law claims that a personal representative or any person who believes they are entitled to a share of the estate may file a petition for court determination of the persons entitled to distribution of the decedent’s estate, also known as a petition for determination of descent.
The law states that a petition should include a statement of the basis for the petitioner’s claim, or in other words, evidence that the person filing the petition has a right to a share of the decedent’s assets. The law establishes the timeline as any point from the issuance of the letters opening probate to the time of the final distribution.
Texas
In Texas, a determination of descent petition is covered under Probate Codes §201.052. The law states that a person may petition the probate court for a determination of the right of inheritance if they claim to be a biological child of the decedent and are not otherwise presumed to be.
If the petitioner is determined to be a biological child of the decedent, then they will be treated as any other biological child. Exceptions to this law include if the parent had terminated their parental rights or if the child is considered to have no right to the inheritance.
Protect your inheritance with the support of experienced legal guidance
A petition for determination of descent, or heirship, is a legal avenue that individuals can take to secure access to an inheritance when they were unknowingly or wrongfully excluded from a will. A successful petition can result in receiving a share of an inheritance equal to other heirs. If you have been excluded from a will and believe you have a right to an inheritance as a descendant, then you should contact an attorney as soon as possible for support.
At RMO, we have combined decades of experience in probate administration, which includes representing omitted heirs in court, filing petitions to secure an heir’s right to an inheritance, navigating inheritance disputes, and more. With this experience, our probate administration attorneys will help you navigate the legal system, understand your options for securing access to your rightful inheritance, and build a winning strategy to obtain it.
Schedule a consultation with our team at RMO Lawyers to learn more about your options under the law.
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit RMO Lawyers.
