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.
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
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