PROBATE CODE CHAPTER III. DETERMINATION OF HEIRSHIP
PROBATE CODE
CHAPTER III. DETERMINATION OF HEIRSHIP
§ 48. PROCEEDINGS TO DECLARE HEIRSHIP. WHEN AND WHERE
INSTITUTED. (a) When a person dies intestate owning or entitled
to real or personal property in Texas, and there shall have been no
administration in this State upon his estate; or when there has
been a will probated in this State or elsewhere, or an
administration in this State upon the estate of such decedent, and
any real or personal property in this State has been omitted from
such will or from such administration, or no final disposition
thereof has been made in such administration, the court of the
county in which such proceedings were last pending, or in the event
no will of such decedent has been admitted to probate in this State,
and no administration has been granted in this State upon the estate
of such decedent, then the court of the county in which venue would
be proper for commencement of an administration of the decedent's
estate under Section 6 of this code, may determine and declare in
the manner hereinafter provided who are the heirs and only heirs of
such decedent, and their respective shares and interests, under the
laws of this State, in the estate of such decedent, and proceedings
therefor shall be known as proceedings to declare heirship.
(b) If an application for determination of heirship is filed
within four (4) years from the date of the death of the decedent,
the applicant may request that the court determine whether a
necessity for administration exists. The court shall hear evidence
upon the issue and make a determination thereof in its judgment.
(c) Notwithstanding any other provision of this section, a
probate court in which the proceedings for the guardianship of the
estate of a ward who dies intestate were pending at the time of the
death of the ward may, if there is no administration pending in the
estate, determine and declare who are the heirs and only heirs of
the ward, and their respective shares and interests, under the laws
of this State, in the estate of the ward.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972;
Acts 1977, 65th Leg., p. 1521, ch. 616, § 1, eff. Aug. 29, 1977.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1170, § 2.02, eff.
September 1, 2007.
§ 49. WHO MAY INSTITUTE PROCEEDINGS TO DECLARE HEIRSHIP.
(a) Such proceedings may be instituted and maintained in any of the
instances enumerated above by the qualified personal
representative of the estate of such decedent, by any person or
persons claiming to be a secured creditor or the owner of the whole
or a part of the estate of such decedent, or by the guardian of the
estate of a ward, if the proceedings are instituted and maintained
in the probate court in which the proceedings for the guardianship
of the estate were pending at the time of the death of the ward. In
such a case an application shall be filed in a proper court stating
the following information:
(1) the name of the decedent and the time and place of death;
(2) the names and residences of the decedent's heirs, the
relationship of each heir to the decedent, and the true interest of
the applicant and each of the heirs in the estate of the decedent;
(3) all the material facts and circumstances within the
knowledge and information of the applicant that might reasonably
tend to show the time or place of death or the names or residences of
all heirs, if the time or place of death or the names or residences
of all the heirs are not definitely known to the applicant;
(4) a statement that all children born to or adopted by the
decedent have been listed;
(5) a statement that each marriage of the decedent has been
listed with the date of the marriage, the name of the spouse, and if
the marriage was terminated, the date and place of termination, and
other facts to show whether a spouse has had an interest in the
property of the decedent;
(6) whether the decedent died testate and if so, what
disposition has been made of the will;
(7) a general description of all the real and personal
property belonging to the estate of the decedent; and
(8) an explanation for the omission of any of the foregoing
information that is omitted from the application.
(b) Such application shall be supported by the affidavit of
each applicant to the effect that, insofar as is known to such
applicant, all the allegations of such application are true in
substance and in fact and that no such material fact or circumstance
has, within the affiant's knowledge, been omitted from such
application. The unknown heirs of such decedent, all persons who
are named in the application as heirs of such decedent, and all
persons who are, at the date of the filing of the application, shown
by the deed records of the county in which any of the real property
described in such application is situated to own any share or
interest in any such real property, shall be made parties in such
proceeding.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972;
Acts 1977, 65th Leg., p. 1522, ch. 616, § 2, eff. Aug. 29, 1977;
Acts 1979, 66th Leg., p. 1744, ch. 713, § 7, eff. Aug. 27, 1979;
Acts 1983, 68th Leg., p. 629, ch. 139, § 1, eff. Sept. 1, 1983;
Acts 1985, 69th Leg., ch. 693, § 1, eff. Sept. 1, 1985.
§ 50. NOTICE. (a) Citation shall be served by registered
or certified mail upon all distributees 12 years of age or older
whose names and addresses are known, or whose names and addresses
can be learned through the exercise of reasonable diligence,
provided that the court may in its discretion require that service
of citation shall be made by personal service upon some or all of
those named as distributees in the application. Citation shall be
served as provided by this subsection on the parent, managing
conservator, or guardian of a distributee who is younger than 12
years of age, if the name and address of the parent, managing
conservator, or guardian is known or can be reasonably ascertained.
(b) If the address of a person or entity on whom citation is
required to be served cannot be ascertained, citation shall be
served on the person or entity by publication in the county in which
the proceedings are commenced, and if the decedent resided in
another county, then a citation shall also be published in the
county of the decedent's last residence. To determine whether
there are any other heirs, citation shall also be served on unknown
heirs by publication in the manner provided by this subsection.
(c) Except in proceedings in which there is service of
citation by publication as provided by Subsection (b) of this
section, citation shall also be posted in the county in which the
proceedings are commenced and in the county of the decedent's last
residence.
(d) A party to the proceedings who has executed the
application need not be served by any method.
(e) A parent, managing conservator, guardian, attorney ad
litem, or guardian ad litem of a distributee who is at least 12
years of age but younger than 19 years of age may not waive citation
required to be served on the distributee under this section.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972;
Acts 1979, 66th Leg., p. 1745, ch. 713, § 8, eff. Aug. 29, 1979;
Acts 1997, 75th Leg., ch. 1130, § 1, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 664, § 2, eff. Sept. 1, 2001.
§ 51. TRANSFER OF PROCEEDING WHEN WILL PROBATED OR
ADMINISTRATION GRANTED. If an administration upon the estate of
any such decedent shall be granted in the State, or if the will of
such decedent shall be admitted to probate in this State, after the
institution of a proceeding to declare heirship, the court in which
such proceeding is pending shall, by an order entered of record
therein, transfer the cause to the court of the county in which such
administration shall have been granted, or such will shall have
been probated, and thereupon the clerk of the court in which such
proceeding was originally filed shall send to the clerk of the court
named in such order, a certified transcript of all pleadings,
docket entries, and orders of the court in such cause. The clerk of
the court to which such cause shall be transferred shall file the
transcript and record the same in the minutes of the court and shall
docket such cause, and the same shall thereafter proceed as though
originally filed in that court. The court, in its discretion, may
consolidate the cause so transferred with the pending proceeding.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972.
§ 52. RECORDED INSTRUMENTS AS PRIMA FACIE EVIDENCE. (a) A
statement of facts concerning the family history, genealogy,
marital status, or the identity of the heirs of a decedent shall be
received in a proceeding to declare heirship, or in a suit involving
title to real or personal property, as prima facie evidence of the
facts therein stated, if the statement is contained in either an
affidavit or any other instrument legally executed and acknowledged
or sworn to before, and certified by, an officer authorized to take
acknowledgments or oaths as applicable, or any judgment of a court
of record, and if the affidavit or instrument has been of record for
five years or more in the deed records of any county in this state in
which such real or personal property is located at the time the suit
is instituted, or in the deed records of any county of this state in
which the decedent had his domicile or fixed place of residence at
the time of his death. If there is any error in the statement of
facts in such recorded affidavit or instrument, the true facts may
be proved by anyone interested in the proceeding in which said
affidavit or instrument is offered in evidence.
(b) An affidavit of facts concerning the identity of heirs of
a decedent as to an interest in real property that is filed in a
proceeding or suit described by Subsection (a) of this section may
be in the form described by Section 52A of this code.
(c) An affidavit of facts concerning the identity of heirs of
a decedent does not affect the rights of an omitted heir or a
creditor of the decedent as otherwise provided by law. This statute
shall be cumulative of all other statutes on the same subject, and
shall not be construed as abrogating any right to present evidence
or to rely on an affidavit of facts conferred by any other statute
or rule of law.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1969, 61st Leg., p. 1922, ch. 641, § 4, eff. June 12, 1969;
Acts 1991, 72nd Leg., ch. 895, § 5, eff. Sept. 1, 1991; Acts
1999, 76th Leg., ch. 1538, § 1, eff. Sept. 1, 1999.
§ 52A. FORM OF AFFIDAVIT OF FACTS CONCERNING IDENTITY OF
HEIRS. An affidavit of facts concerning the identity of heirs of a
decedent may be in substantially the following form:
AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS
Before me, the undersigned authority, on this day personally
appeared __________ ("Affiant") (insert name of affiant) who, being
first duly sworn, upon his/her oath states:
1. My name is __________ (insert name of affiant), and I live
at __________ (insert address of affiant's residence). I am
personally familiar with the family and marital history of
__________ ("Decedent") (insert name of decedent), and I have
personal knowledge of the facts stated in this affidavit.
2. I knew decedent from __________ (insert date) until
__________ (insert date). Decedent died on __________ (insert date
of death). Decedent's place of death was __________ (insert place
of death). At the time of decedent's death, decedent's residence was
__________ (insert address of decedent's residence).
3. Decedent's marital history was as follows: __________
(insert marital history and, if decedent's spouse is deceased,
insert date and place of spouse's death).
4. Decedent had the following children: __________ (insert
name, birth date, name of other parent, and current address of child
or date of death of child and descendants of deceased child, as
applicable, for each child).
5. Decedent did not have or adopt any other children and did
not take any other children into decedent's home or raise any other
children, except: __________ (insert name of child or names of
children, or state "none").
6. (Include if decedent was not survived by descendants.)
Decedent's mother was: __________ (insert name, birth date, and
current address or date of death of mother, as applicable).
7. (Include if decedent was not survived by descendants.)
Decedent's father was: __________ (insert name, birth date, and
current address or date of death of father, as applicable).
8. (Include if decedent was not survived by descendants or by
both mother and father.) Decedent had the following siblings:
__________ (insert name, birth date, and current address or date of
death of each sibling and parents of each sibling and descendants of
each deceased sibling, as applicable, or state "none").
9. (Optional.) The following persons have knowledge
regarding the decedent, the identity of decedent's children, if
any, parents, or siblings, if any: __________ (insert names of
persons with knowledge, or state "none").
10. Decedent died without leaving a written will. (Modify
statement if decedent left a written will.)
11. There has been no administration of decedent's estate.
(Modify statement if there has been administration of decedent's
estate.)
12. Decedent left no debts that are unpaid, except:
__________ (insert list of debts, or state "none").
13. There are no unpaid estate or inheritance taxes, except:
__________ (insert list of unpaid taxes, or state "none").
14. To the best of my knowledge, decedent owned an interest in
the following real property: __________ (insert list of real
property in which decedent owned an interest, or state "none").
15. (Optional.) The following were the heirs of decedent:
__________ (insert names of heirs).
16. (Insert additional information as appropriate, such as
size of the decedent's estate.)
Signed this ___ day of __________, ____.
_________________________________
(signature of affiant)
State of __________
County of __________
Sworn to and subscribed to before me on __________ (date) by
__________ (insert name of affiant).
_________________________________
(signature of notarial officer)
(Seal, if any, of notary) __________
(printed name)
My commission expires: __________
Added by Acts 1999, 76th Leg., ch. 1538, § 2, eff. Sept. 1, 1999.
§ 53. EVIDENCE; UNKNOWN PARTIES AND INCAPACITATED
PERSONS. (a) The court in its discretion may require all or any
part of the evidence admitted in a proceeding to declare heirship to
be reduced to writing, and subscribed and sworn to by the witnesses,
respectively, and filed in the cause, and recorded in the minutes of
the court.
(b) If it appears to the court that there are or may be living
heirs whose names or whereabouts are unknown, or that any defendant
is an incapacitated person, the court may, in its discretion,
appoint an attorney ad litem or guardian ad litem to represent the
interests of any such persons. The court may not appoint an
attorney ad litem or guardian ad litem unless the court finds that
the appointment is necessary to protect the interests of the living
heir or incapacitated person.
(c) The court shall appoint an attorney ad litem to represent
the interests of unknown heirs.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972;
Acts 1995, 74th Leg., ch. 1039, § 6, eff. Sept. 1, 1995; Acts
2001, 77th Leg., ch. 664, § 3, 4, eff. Sept. 1, 2001.
§ 53A. ORDER FOR GENETIC TESTING AUTHORIZED. (a) In a
proceeding to declare heirship under this chapter, the court may,
on the court's own motion, and shall, on the request of a party to
the proceeding, order one or more specified individuals to submit
to genetic testing as provided for in Subchapter F, Chapter 160,
Family Code. If two or more individuals are ordered to be tested,
the court may order that the testing of those individuals be done
concurrently or sequentially. The court may enforce an order under
this subsection by contempt.
(b) Subject to any assessment of costs following the
proceeding in accordance with Rule 131, Texas Rules of Civil
Procedure, the cost of genetic testing ordered under Subsection (a)
of this section must be advanced:
(1) by a party to the proceeding who requests the
testing;
(2) as agreed by the parties and approved by the court;
or
(3) as ordered by the court.
(c) Subject to Subsection (d) of this section, the court
shall order genetic testing subsequent to the testing conducted
under Subsection (a) of this section if:
(1) a party to the proceeding contests the results of
the genetic testing ordered under Subsection (a) of this section;
and
(2) the party contesting the results requests that
additional testing be conducted.
(d) If the results of the genetic testing ordered under
Subsection (a) of this section identify a tested individual as an
heir of the decedent, the court may order additional genetic
testing in accordance with Subsection (c) of this section only if
the party contesting those results pays for the additional testing
in advance.
(e) If a sample of an individual's genetic material that
could identify another individual as the decedent's heir is not
available for purposes of conducting genetic testing under this
section, the court, on a finding of good cause and that the need for
genetic testing outweighs the legitimate interests of the
individual to be tested, may order any of the following other
individuals to submit a sample of genetic material for the testing
under circumstances the court considers just:
(1) a parent, sibling, or child of the individual
whose genetic material is not available; or
(2) any other relative of that individual, as
necessary to conduct the testing.
(f) On good cause shown, the court may order:
(1) genetic testing of a deceased individual under
this section; and
(2) if necessary, removal of the remains of the
deceased individual as provided by Section 711.004, Health and
Safety Code, for that testing.
(g) An individual commits an offense if the individual
intentionally releases an identifiable sample of the genetic
material of another individual that was provided for purposes of
genetic testing ordered under this section, the release is for a
purpose not related to the proceeding to declare heirship, and the
release was not ordered by the court or done in accordance with
written permission obtained from the individual who provided the
sample. An offense under this subsection is a Class A misdemeanor.
Added by Acts 2007, 80th Leg., R.S., Ch. 566, § 1, eff. September
1, 2007.
§ 53B. RESULTS OF GENETIC TESTING; ADMISSIBILITY.
(a) A report of the results of genetic testing ordered under
Section 53A of this chapter:
(1) must comply with the requirements for a report
prescribed by Section 160.504, Family Code; and
(2) is admissible in a proceeding to declare heirship
under this chapter as evidence of the truth of the facts asserted in
the report.
(b) The presumption under Section 160.505, Family Code,
applies to the results of genetic testing ordered under this
section, and the presumption may be rebutted as provided by that
section.
(c) A party to the proceeding who contests the results of
genetic testing may call one or more genetic testing experts to
testify in person or by telephone, videoconference, deposition, or
another method approved by the court. Unless otherwise ordered by
the court, the party offering the testimony bears the expense for
the expert testifying.
Added by Acts 2007, 80th Leg., R.S., Ch. 566, § 1, eff. September
1, 2007.
§ 53C. USE OF GENETIC TESTING RESULTS IN CERTAIN
PROCEEDINGS TO DECLARE HEIRSHIP. (a) This section applies in a
proceeding to declare heirship of a decedent only with respect to an
individual who:
(1) petitions the court for a determination of right
of inheritance as authorized by Section 42(b) of this code; and
(2) claims to be a biological child of the decedent,
but with respect to whom a parent-child relationship with the
decedent was not established as provided by Section 160.201, Family
Code, or who claims inheritance through a biological child of the
decedent, if a parent-child relationship between the individual
through whom the inheritance is claimed and the decedent was not
established as provided by Section 160.201, Family Code.
(b) Unless the results of genetic testing of another
individual who is an heir of the decedent are admitted as rebuttal
evidence, the court shall find that the individual described by
Subsection (a) of this section is an heir of the decedent if the
results of genetic testing ordered under Section 53A of this
chapter identify a tested individual who is an heir of the decedent
as the ancestor of the individual described by Subsection (a) of
this section.
(c) Unless the results of genetic testing of another
individual who is an heir of the decedent are admitted as rebuttal
evidence, the court shall find that the individual described by
Subsection (a) of this section is not an heir of the decedent if the
results of genetic testing ordered under Section 53A of this
chapter exclude a tested individual who is an heir of the decedent
as the ancestor of the individual described by Subsection (a) of
this section.
(d) If the results of genetic testing ordered under Section
53A of this chapter do not identify or exclude a tested individual
as the ancestor of the individual described by Subsection (a) of
this section:
(1) the court may not dismiss the proceeding to
declare heirship; and
(2) the results of the genetic testing and other
relevant evidence are admissible in the proceeding.
Added by Acts 2007, 80th Leg., R.S., Ch. 566, § 1, eff. September
1, 2007.
§ 53D. ADDITIONAL ORDERS AUTHORIZED. On the request of
an individual determined by the results of genetic testing to be the
heir of a decedent and for good cause shown, the court may:
(1) order the name of the individual to be changed; and
(2) if the court orders a name change under
Subdivision (1) of this section, order the bureau of vital
statistics to issue an amended birth record for the individual.
Added by Acts 2007, 80th Leg., R.S., Ch. 566, § 1, eff. September
1, 2007.
§ 53E. PROCEEDINGS AND RECORDS PUBLIC. A proceeding
under this chapter involving genetic testing is open to the public
as in other civil cases, and papers and records in the proceeding
are available for public inspection.
Added by Acts 2007, 80th Leg., R.S., Ch. 566, § 1, eff. September
1, 2007.
§ 54. JUDGMENT. The judgment of the court in a proceeding
to declare heirship shall declare the names and places of residence
of the heirs of the decedent, and their respective shares and
interests in the real and personal property of such decedent. If
the proof is in any respect deficient, the judgment shall so state.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972.
§ 55. EFFECT OF JUDGMENT. (a) Such judgment shall be a
final judgment, and may be appealed or reviewed within the same time
limits and in the same manner as may other judgments in probate
matters at the instance of any interested person. If any person who
is an heir of the decedent is not served with citation by registered
or certified mail, or by personal service, he may at any time within
four years from the date of such judgment have the same corrected by
bill of review, or upon proof of actual fraud, after the passage of
any length of time, and may recover from the heirs named in the
judgment, and those claiming under them who are not bona fide
purchasers for value, his just share of the property or its value.
(b) Although such judgment may later be modified, set aside,
or nullified, it shall nevertheless be conclusive in any suit
between any heir omitted from the judgment and a bona fide purchaser
for value who has purchased real or personal property after entry of
the judgment without actual notice of the claim of the omitted heir.
Similarly, any person who has delivered funds or property of the
decedent to the persons declared to be heirs in the judgment, or has
engaged in any other transaction with them, in good faith, after
entry of such judgment, shall not be liable therefor to any person.
(c) If the court states in its judgment that there is no
necessity for administration on the estate, such recital shall
constitute authorization to all persons owing any money to the
estate of the decedent, or having custody of any property of such
estate, or acting as registrar or transfer agent of any evidence of
interest, indebtedness, property, or right belonging to the estate,
and to persons purchasing from or otherwise dealing with the heirs
as determined in the judgment, to pay, deliver, or transfer such
property or evidence of property rights to such heirs, or to
purchase property from such heirs, without liability to any
creditor of the estate or other person. Such heirs shall be
entitled to enforce their right to payment, delivery, or transfer
by suit. Nothing in this chapter shall affect the rights or
remedies of the creditors of the decedent except as provided in this
subsection.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1971, 62nd Leg., p. 971, ch. 173, § 4, eff. Jan. 1, 1972;
Acts 1979, 66th Leg., p. 1746, ch. 713, § 9, eff. Aug. 29, 1979.
§ 56. FILING OF CERTIFIED COPY OF JUDGMENT. A certified
copy of such judgment may be filed for record in the office of the
county clerk of the county in which any of the real property
described in such judgment is situated, and recorded in the deed
records of such county, and indexed in the name of such decedent as
grantor and of the heirs named in such judgment as grantees; and,
from and after such filing, such judgment shall constitute
constructive notice of the facts set forth therein.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.