As stated in the previous article, the State of Texas has a default will for people who die without one. That’s all fine and dandy, but that system gives out the money to people “heirs” based on the closeness of familial relationship. But, the question becomes, who determines the heirs because there could be a contest. For example, the Artist Formerly Known as Prince had people lining up to claim they were heirs to his money (See link). The short answer is the law and the judge determine, but I will address this in detail in this article.
An heirship proceeding has nothing to do with the Hindenburg (an airship). It is the legal process of establishing who the owners of a dead person’s property are if that person left no will, or no valid will behind. The proceeding, as I describe, takes time. This is one of the many reasons why you should hire an attorney to help you draft a Will or Trust and other estate planning documents. Because, this process is best avoided.
Very, very simply described, the proceeding goes as follows:
1. You ask the court to start the process;
2. You state the known family members or presumed heirs;
3. The court appoints an attorney called an ad litem (Latin), who helps the court do
an independent search for heirs;
4. The ad litem does his or her report;
5. The court determines who the heirs are and what portion of the property / money
they inherit.
As stated in the article about dying without a Will, the state has a scheme that chooses who gets your stuff without a Will. This is can produce very confusing results, especially for mixed families. Furthermore, as a community property state, things become unpredictable for mixed family. For example, many surviving spouses come to me surprised that they will not receive the full share of their dead spouse’s estate because the deceased spouse had kids not from that marriage.
Personally, the scheme is so detailed I often have to refer to the charts to determine who gets what when someone comes to my office with this issue. You can view the charts here here.
As I described in this article, an heirship determination process involves the court. This can create the following issues:
The bottom line is, no one wants the state to decide who gets your property once your gone. And no one wants their family in a bind to wait for precious resources while the process plays out in court. And, sometimes, courts can have long lines (months) to address these issues. Choose who you want to receive your property, choose who you want to be in charge, choose your family’s interests.
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