Determination Of Heirship & Independent Administration

When a person dies without leaving a will, then the most common type of probate case involves a determination of heirship and an independent administration.

First, the judge must determine who the deceased person's heirs are. In doing this, the law requires that an attorney ad litem be appointed to investigate who the deceased person's family members were at the time of their death. The attorney ad litem will look into the deceased person's marital and dating history to find out if they had any children that were born to or adopted by them that are unknown to the applicant for probate. An attorney ad litem specifically tries to find any unknown heirs and does not represent the known heirs of the estate. An attorney ad litem may also be appointed to represent any known heirs who do not have the legal capacity to participate in the probate process.

Second, once the attorney ad litem conducts their investigation into the deceased person's heirs and files their report with the court, then a hearing will be conducted to move the case forward and to begin the probate process.

Third, once the heirs have been determined, the judge will appoint an administrator. Prior to having a court hearing, the attorney representing the applicant, will have likely reached out to the deceased person's known heirs and requested their agreement to have an independent administration of the deceased person's estate. An independent administration means that the administrator does not have to continually go back to court to get the judge's permission to handle estate affairs.

Once an independent administrator is appointed, they begin to handle the deceased person's estate by gathering their assets, paying the debts and distributing what remains to the heirs. An independent administrator must follow the statutory deadlines for notifying people and debtors and filing paperwork with the court, just as an executor might do. Failure to follow the statutory deadlines could result in the independent administrator being removed.

If the heirs do not agree on an independent administration, then the person appointed administrator of the deceased person's estate will have to conduct their job by requesting permission to act from the judge, which is called a dependent administration. A dependent administration often takes a long time to complete because of the constant back and forth between the judge.

With an office in San Marcos, Scanio & Scanio, A Professional Corporation, serves clients in the Central Texas counties of Hays, Comal, Caldwell and Guadalupe. To schedule an initial consultation with one of our attorneys, call 512-396-2016 or send us an email.