After a loved one dies, their property is distributed to their heirs through the probate process. Probate occurs whether a person died with a will, or without one (intestate). Probate ensures that all debts are paid, that assets are appropriately inventoried, and that the assets are distributed to the right beneficiaries.
In many cases, probate is a relatively straightforward process. However, in some situations, the estate’s heirs may be missing – or even unknown. If heirs cannot be located, then there are several options that can be utilized to probate an estate with unknown heirs.
If your loved one has passed away and you cannot locate the heirs, a skilled probate attorney can help you probate their estate. Below, we examine the three options for probate with unknown heirs, which will allow you to move forward with the process and distribute the assets in accordance with Texas law.
Can I Probate an Estate If There are Unknown Heirs?
When a person dies, their heirs – such as a surviving spouse, children, grandchildren, and other family members – are often known. Many families have more complicated situations, including children born outside of a marriage or estranged family members. If an heir cannot be located, then it can make the process of probating the will or estate more complicated.
In Texas, a personal representative is either named in a will or appointed by a court if a person dies intestate. The personal representative is responsible for starting the probate process. If one or more heirs to an estate cannot be located, then the personal representative is required to take certain steps before the estate can be probated.
Fortunately, you can do probate with unknown heirs in Texas. There are a few ways that a personal representative can search for missing or unknown heirs to move the process forward: filing an affidavit of heirs, requesting a determination of heirship, searching for the missing heirs, and/or publishing a notification in a newspaper to find the heirs.
Option One: Affidavit of Heirs
An Affidavit of Heirs is a legal document that is prepared for the probate court. It lists all of the known heirs of the person who died (decedent), along with their names, address, ages, and dates of death (if applicable). An Affidavit of Heirs often includes people such as a spouse, children (including both biological and adopted children), grandparents, aunts, and uncles.
Listing an individual on the Affidavit of Heirs does not entitle them to inherit anything from the estate. However, it is an important step that informs the court who the potential heirs are, and where they are located. This affidavit can be filed by the personal
The person who fills out this form must be familiar with the decedent and their family in order to accurately list all known heirs. This affidavit must be sworn and notarized. If a potential heir is omitted from the affidavit, it won’t affect their right to inherit.
Option Two: Determination of Heirship
If there are missing or unknown heirs, then an application to determine heirship can be filed with the probate court. Through this process, the court determines who the heirs are, and which heir gets shares of the estate.
An application for determination of heirship can be filed by the personal representative of the estate, a creditor of the state, a person claiming to be the owner of the estate or a party who seeks the appointment of an independent administrator. Generally, a lawyer is required to file this application.
If the names and locations of the heirs are unknown, a court may also appoint a lawyer, known as an attorney ad litem, to locate unknown heirs. This process involves a court hearing (proceeding to declare heirship) with at least 2 live witnesses who can testify as to the decedent’s family and relationships.
Option Three: Heir Search
If some heirs are missing or unknown, a search can be performed to try to locate possible heirs. This may be done by a private investigator or by a company that specializes in heir searches.
An heir search is a good way to fill in gaps on a family tree, allowing the personal representative to list all potential heirs on the Affidavit of Heirs. It can be used to figure out who heirs may be – and to find the location of any heirs that may be missing.
Option Four: Publication
The third option for probate with unknown heirs is to run a publication in a newspaper. This is often required by the court and can be a useful way to find heirs. A publication will include the name of the decedent, the probate case number, and other relevant information.
However, because many people don’t read newspapers (or the notifications section), it often is not successful. For this reason, the publication is often used in conjunction with other methods – such as hiring a company to search for heirs – to get a more complete picture of a decedent’s potential heirs.
How We Can Help
After a loved one dies, the probate process can seem overwhelming. Complying with the legal requirements is often difficult when you are grieving and unfamiliar with the rules. If there are missing or unknown heirs, it can be even more challenging.
At Forbes & Forbes, we represent individuals and families throughout probate – including probate for unknown heirs. We have significant experience in all types of Texas probate and will work collaboratively with you throughout the process. To learn more or to schedule a free consultation with an El Paso probate attorney, call our law firm at 915-533-5441 or fill out our online contact form.