So here you are. You finally made it. After what seems like forever, you have finally arrived at the hearing on the determination of heirship. While no heirship hearing is exactly the same, the article should give you a better idea of how it will go. For many estates, the determination of heirship hearing is usually the starting phase of probate process. This may seem odd to you because you probably have already been through multiple phone calls with your probate lawyer and exchanged dozens of emails. You may have thought you were nearing the end of the process, rather than just taking your place at the starting line.
In truth, you have come a long way. All this time – all the emails back and forth with your lawyer – has been about preparing the written request for the determination of heirship, which he or she subsequently filed with the court. 95% of a determination of heirship is about the preparation. As Sun Zu said – every battle is won or lost before it is ever fought. Once you complete the preparation, the rest will likely be breeze (so long as no one contests the determination of heirship).
So what is the point in holding a hearing? Well, even though a request to determine heirship must be put in written format and filed with the court, the court also has to hear testimony from someone familiar with the decedent’s family history. This generally has to be done in person and live in the courtroom (or over Zoom depending on which court you are in). With a request to determine heirship, the court must hear testimony from at least one person (usually two) who can testify as to things like – was the decedent married? – how many children were there? – etc. As a result, a request must be made to the court in two parts – (1) the written part and (2) an oral part, also known as the hearing.
Remember all those emails back and forth with your lawyer – that was about gathering the necessary information so that he or she could write a formal “Request for Determination of Heirship”. After the lawyer filed this document in the court’s file, he or she called the clerk of the court and requested a hearing date. Then the lawyer called you and emailed you the date and time.
So what is the big deal about the hearing? Many clients and witnesses are seemingly scared to death about their upcoming court date. Well, the truth is that you should not be afraid of the hearing or nervous about it. Except in rare cases, there will be nothing new at the hearing. In other words, everything that will be asked of you or the witnesses consists of information that your lawyer has already asked you for and that you have already provided. The hearing is much like the verbal recitation of your written request.
If you are the person requesting the determination of heirship, also known as “the applicant”, then you will not likely have to testify unless you are also requesting to appointed as an administrator of the estate. Earlier in the preparation phase, your lawyer will have asked you to ask two friends or relatives who know the decedent’s family history. These two witnesses will have to testify. However, even if it’s their first time testifying orally, your lawyer will simply ask the same questions that he or she asked you when preparing the written portion of your request for determination of heirship. Your lawyer will probably ask the witnesses the exact same questions during the preparation phase so they will not have to answer any “new” questions at the hearing. In fact, at the hearing, the judge will likely already know the answer to each question asked because the answer is already in the written request that your lawyer filed with the court. However, under Texas law, it’s not enough to just provide the information in the written request. To be admitted as evidence in the court, it almost always will need to be provided through oral testimony under oath. That is where the hearing comes in.
When I file a determination of heirship for a client, I generally ask the following questions of each of the two witnesses at the hearing. If you a requesting a determination of heirship or are expected to be a witness at one, then it is very likely that the filing lawyer, or the attorney ad litem, will ask the same or similar questions. The questions are:
- What is your name?
- How do you know the decedent?
- For how long did you know the decedent?
- The decedent lived at (address), Texas, correct?
- How many children did the decedent have?
- Did the decedent ever adopt any children?
- Do you know if the decedent was married at the time of the decedent’s death?
- If yes, what was the name of the decedent’s spouse?
- How many times was the decedent married?
- To your knowledge, did the decedent leave a written will?
- Based on how familiar you were with the decedent, do you believe the decedent would probably have told you if he or she had more children, was divorced, had additional marriages, or had a will?
Unless your request for determination of heirship is contested by some other person, then in all likelihood the only other attorney involved with your case will be what is called an attorney ad litem. The attorney ad litem will have been appointed by the court earlier in the preparation phase, probably when your lawyer filed the written portion of your request for determination of heirship. In Texas, when it comes to a determination of heirship, the law assumes that there are “unknown heirs”. The attorney ad litem is always appointed by the court upon the filing of a determination of heirship. In practice, his or her job is to search the public records for any other heirs besides those listed in the written request. The attorney ad litem will also interview the parties and witnesses as well. In a sense, one can understand the need for the attorney ad litem because sometimes unscrupulous potential heirs file a request for determination of heirship and simply decide to leave out the black sheep of the family even if they also are entitled to inherit property from the decedent.
Other than your own lawyer, who helped prepare the request for determination of heirship, the only other person who is likely to ask any questions of the witnesses at the hearing is the attorney ad litem. However, generally there are no surprises here and there is no need to be nervous. This is because the attorney ad litem has already asked the witnesses these very same questions. In a determination of heirship, the court will expect the attorney ad litem to prepare a report on heirship, which will help the court determine who are the lawful heirs of the decedent. However, this report must be completed and filed with the court before the oral hearing. As a result, the attorney ad litem cannot simply wait to question the witnesses at the hearing. Rather, he or she must interview the witnesses beforehand. Therefore, his or her questions at the hearing will likely be just a repeat of what they have already been asked.
So there you have it. In a typical uncontested case, this is what a hearing on a determination of heirship looks like. It proceeds at a fast pace. If you are in large county like Harris, Fort Bend, Dallas, or Travis county, then the court will likely be scheduled to hear several determination of heirship requests from various people all the same hearing. The judge will call one case at a time and each case usually last between 5 and 10 minutes. Sometimes, the request for determination of heirship will be combined with a request to be appointed the administrator of the estate, in which case, your attorney may ask you, in addition to the witnesses, to testify as well. After your lawyer and the attorney ad litem are done interviewing the witnesses, the court will general make a ruling and enter a judgment naming the persons who the law recognizes as the heirs.
If you have loved one who passed away with or without a will and are interested in receiving legal advice and representation for this matter, then call the Law Offices of Joseph E. Seiler at (713) 343-1450 or message us below.
State Bar of Texas
Texas Supreme Court
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United State Federal Court for the Southern District of Texas
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