If you or a loved one were to die without a will in Texas, you are putting your family in a more difficult spot than need be. When a loved one passes away the feelings of grief, sadness and loss can be extremely difficult to manage. However, on top of those emotions, you may also find yourself in a position where you are having to sort through their finances to determine not only what sort of assets and debts your loved one has in their name, but how to divide up their assets. This means determining your loved one’s heirs. For some of you, this may prove to be a challenge if your loved one has family spread out across the country or world. It can become even more of a challenge if you do not know the whereabouts of a loved one’s family or have never come into contact with them, at all.
That brings us to today's blog post from the Law Office of Bryan Fagan. Having to sort through these tough questions means that it will likely be necessary for you to go through the probate process. Probate involves filing a legal case in the county where your loved one resided or passed away. The purpose of probate is to determine the assets and debts of your loved one, locate potential heirs (relatives) and then confirm the identity of any creditors that may have a claim against your loved one for debts. A probate court judge will oversee this process and permit you to work on these steps as the administrator of your loved one's estate. Again, this is all being done because your loved one passed away without a will.
Will you receive assistance from the court in locating your loved one’s heirs?
One important thing to keep in mind is that the burden will not entirely be on your shoulders to locate any missing or hard-to-reach heirs of your loved one. The court will even assign you a helper of sorts in locating these people. Specifically, the person who will be assisting you is named an ad litem attorney. In most cases, the ad litem attorney is an attorney who is in good standing and appointed from a rotating list of lawyers with the court. The ad litem attorney will be assigned to your case and conduct basic research in due diligence into locating the heirs of your loved one period after their efforts he or she will report back to the court with their findings. The probate court judge will then be able to make more well-informed decisions regarding distributing property and paying creditors.
The process begins by the court appointing an attorney ad litem and then providing citation by publication to the potential errors of your deceased loved one. In many cases, the aligned attorney will be trying to verify fairly straightforward information as provided by you and the other evidence submitted to the court. This will be a rather run-of-the-mill, routine case in the probate court where your loved ones' errors are fairly easy to locate and there are not issues for the court to sort out.
On the other hand, discussing cases like this would not make for a very interesting or informative blog post. For that reason, I would like to talk some about the more interesting, complex probate court situations that an ad litem attorney and you may find yourselves in. In many cases, the existence of living or deceased heirs of your loved one will not be disclosed 2 new. That could be due in part because of ignorance or someone trying to gain an advantage in an heirship proceeding. Yours would not be the first case where an unknown error failed to disclose an unknown error to gain an advantage over him or her.
Atypical probate case would involve the ad litem attorney confirming that the application for heirship is correct, that there are no controversial or issues that require a contested probate case, and that you have met your burden of proof and showing these things to the court. Most probate cases are just like this. The outline of attorneys will simply perform their due diligence, report back to the court and exit stage left. You will then be able to proceed with your case.
However, your loved one may have potential heirs who may not be well known to you or none at all. If you do not know where your potential heirs live then it is unlikely that you will be able to play detective and locate these folks using social media or other typical online methods of looking people up. This responsibility will fall to the ad litem attorney who will be charged with performing this kind of research for a fee.
When it comes to being an heir of another person, this means that an heir is a person who stands to inherit property or assets from a person who has passed away. An error is someone who was in this position because their deceased relative did not have a will when he or she passed away. It could also mean that your deceased loved one did have a will but it was not properly executed and therefore declared to be invalid. in that case, the person effectively passed away without a will in this the search must be undertaken to make sure that no errors are left unaccounted for in the probate case.
You would need to apply with the probate court to determine heirship. If not you, then any potential heir or even a creditor of your loved one may also apply. You will need to apply with an affidavit attached which includes your best understanding of the state of heirship for your loved one. Once you have accomplished this, the court would issue a citation which would serve to inform any potential error of your loved one of the pending probate case. This typically takes place through a newspaper or other publication in an area where your loved one and their heirs resided.
The court would appoint an attorney ad litem to represent any of these unknown heirs who have not yet made an appearance before the court. The justification for appointing and Litem attorney is that doing so is intended to protect the interests of any potential heir of your loved one who is not already made known to the court. The attorney ad litem will be paid as a court cost that will have to be borne by the loved one's estate.
What are the types of evidence typically submitted in an heirship proceeding?
In many Texas counties, the testimony of two disinterested witnesses who have personal knowledge regarding your loved ones' family must testify in an heirship proceeding. Information that will be testified about will be that regarding the relationship of any potential heir to your loved one and their vital information like their identity, birth date, date of marriage, or even their date of death if they have passed away.
What you should be looking for depending upon the type of probate case he will be involved with
In a typical probate case, you should assume that if the case is fairly straightforward, to begin with, that this is also the way that the case will end. There is no use assuming the worst or thinking negatively about a situation when nothing is leading you towards that result. If your case begins as being pretty simple then it is very likely that this is how your case will end. The ad litem attorney is there to help the judge understand more about the case specifically any subjects within the case that may be confusing or difficult.
I will say at this stage that having your attorney during an heirship proceeding and probate court case is that having your lawyer can be extremely helpful and making sure that you and your loved one are cared for in the best way. Having an attorney who is experienced in handling complex probate matters will help you be able to sort through some of the more difficult circumstances and provide you with advice on how to proceed. Many probate courts around Texas require that you have your attorney to guide you and shepherd you through the process. With so much that can occur beyond your control within a probate case, you must be able to have an attorney not only for guidance before giving you a perspective on the case when he might feel that things are going poorly or that the case has gotten out of control.
Once it becomes apparent to the court that your loved one does have heirs that are unknown or difficult to locate that is when the ad litem attorney becomes crucially important. While you and your attorney will likely be attempting to search for these people on your own the court will task the ad line and attorney with using every tool and method at their disposal to locate these potential errors. Many times you will find yourself in a situation during a probate case where your loved one has one side of their family who keeps in contact with each other frequently and another side who rarely does. Lo and behold that it is oftentimes the side that does not keep up with one another where the unknown potential heir comes from.
In a situation like this your attorney as well as the add Litem attorney we need to figure out how much effort to put forth into searching for these persons to the degree where the effort will result in information that can come into the courtroom. It is very easy to find yourself in a position where you are searching down rabbit holes of information where nothing relevant will be able to come up. In that case, sometimes discretion is the better part of valor, and new your attorney will have to determine when your efforts will be for not in the context of your broader case.
Sometimes these types of cases are made even more difficult because relatives of your deceased loved one will purposefully attempt to hide the whereabouts of a relative to you. We have all seen movies like this where a straight-laced family member attempts to keep a ne’er-do-well relative out of the proceedings to eliminate the risk of potential disruptions to the case.
What does an ad litem attorney’s written report look like?
After the ad litem attorney's time in your case, he or she will prepare a report that contains the findings of their investigation in any unknown potential heirs of your loved one. A summation of their research and the steps taken to accumulate information will be contained within the report.
If the ad litem attorney finds an heir who was previously unknown to the court then he or she will update the court with their contact information. Once you are made known of this previously unknown heir you will need to resubmit your application for the court. Not only will these heirs be important to bring forward due to their relationship with your loved one, but your attorney and the ad litem attorney can also ask questions of the person to learn about other potential parties to the case who may be unknown to the court.
Your attorney will have an opportunity to question any heir who comes forward during the case in a hearing. This is important for the path your case takes as being able to know who is in play as far as property distribution is concerned is the exact thing that a probate court is charged with doing. While it may be frustrating to have people seemingly come out of the woodwork in a probate case, it is not something that you have control over.
Closing thoughts on probate cases involving unknown heirs
If you find yourself in a position where you are representing a loved one’s estate in an heirship proceeding or probate case then you are likely to feel conflicted in a few ways. For one, you are likely grieving their death while having to attend to many business-like developments in their case. This can be difficult to rationalize given the desire to want to properly mourn their passing and remember them in a positive light. Going through a probate case can force you to consider many areas of your life that may be unsavory or previously unknown to you. This is enough to cause you to feel conflicted as positive memories of the person are likely to be rushing through your mind as you being the process of sorting through your own emotions surrounding their passing.
Even still, you have a job to do. If you were close to your loved one and we're in a position to file the probate case then this is a hefty responsibility. Even the most well-intentioned and well-organized person would benefit from being able to have an attorney available to consult with on difficult subject matter, file paperwork, and speak on their behalf in hearings. All of the aforementioned benefits of having an attorney for your case increase if the case becomes contested. Imagine having unknown heirs go to war with one another over your loved one's estate. Throw in a possible issue with a creditor and you have all the makings of a difficult probate matter. Going it alone under these circumstances would not be advisable in my opinion.
Fortunately for you, there are many options when it comes to hiring an experienced estate planning and probate attorney. If your loved one has passed away then you can meet with one of our attorneys to plan for an heirship proceeding or a contested this state situation. Overall, having an attorney can do nothing but provides you with benefits both in the short and long term period as I frequently advise clients having an attorney is a short-term investment into long-term clarity and Peace of Mind.
Finally, if your loved one has not passed away and you are in a position to positively influence their life then you can speak to him or her in an attempt to convince him or her to meet with an estate planning lawyer to draft a will while that is still a possibility. Drafting a whale is a simple way for your loved one to take matters into their own hands and see to it that heirship proceedings are not even necessary. Drafting a will does that have to be difficult or time-consuming and having an attorney to assist you and your loved one can make the process that much simpler.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning and probate attorneys offer free of charge consultation six days a week in person, over the phone, and video. These consultations are a great way for you to learn more about the world of Texas estate planning and probate law as well as about how your family circumstances may be impacted by a probate case in the future.