Heirship Proceedings


     When a person dies without a valid will, then title to their property automatically passes by laws of "intestacy" to their heirs. In those situations, a court proceeding may be necessary so that banks, realtors and other persons can have a formal document to rely upon, which establishes the lawful heirs. There are several proceedings that may be satisfactory for the client's needs. One of those procedures is a small estate affidavit, for estates having a total value not exceeding $50,000, excluding homestead and exempt property. For larger estates, a determination of heirship proceeding may be necessary.

Application to Determine Heirship

     The first step in heirship proceedings is for someone to file an application to determine heirship. The filing fee charged by the county clerk is approximately $248. Once the application is filed, the clerk of the court posts a public notice of the application. The applicant also mails copies of the application by certified mail to the known heirs.

Ad Litem

     In heirship proceedings, the court requires the appointment of an "attorney ad litem," an person whose job is to locate and notify any missing heirs. The ad litem typically performs several hours of work investigating the decedent's family background and interviewing witnesses. The applicant is responsible for paying the fees charged by the ad litem.

Hearing on Application

     After the ad litem completes their investigation and makes their conclusions about the identify of the heirs, an oral hearing is held in court. At the hearing, the judge hears testimony from witnesses. The judge then signs an order identifying all of the heirs. In the order, if requested, the court may also appoint one or more persons responsible for paying debts and distributing the decedent's estate. That person is known as an "administrator."

Letters of Administration

     Within 20 days after the hearing, the administrator must take an oath, swearing to properly perform their duties as the administrator. Depending on the type and extent of property in the estate, the administrator may also be required to post a bond before becoming qualified to serve as administrator. After this qualification process, the administrator receives from the court a document known as "letters of administration." It is a formal document that the administrator can provide to banks and others who require proof of the administrator's authority to act on behalf of the intestate estate.

Inventory and Appraisement

     Within 90 days after qualifing to serve as administrator, the administrator must file with the court an inventory stating the fair market value of each item of estate property as of the date of death. The county clerk charges a fee of approximately $25 for filing the inventory.

Distributing the Estate

The final step in the probate process is for the administrator to pay any debts and taxes owing, and distribute the remaining property to the heirs. This can be usually be done without court approval when all of the heirs agree.