In Texas, nobody is legally an heir until a judge signs a judgment declaring heirship. When two branches of a family disagree about who the heirs are, a Travis County heirship proceeding turns into a contested trial.
An affidavit of heirship is a sworn statement recorded in the county deed records. No judge reviews it or signs an order on it, and a title company can decline to rely on it. Preparing one is routine document work that we don’t handle, so if the family agrees and that affidavit is all you need, tell us on the call and we’ll point you somewhere that fits.
A contested proceeding to declare heirship is a lawsuit under Chapter 202 of the Texas Estates Code, filed in one of the two Travis County probate courts. It has parties, a court-appointed attorney ad litem, evidence and a hearing. It ends in a judgment naming the heirs and their shares, which Section 202.202 makes a final judgment. That’s the work we do.
Texas Estates Code Section 202.009(a): in a proceeding to declare heirship, the court shall appoint an attorney ad litem to represent the interests of heirs whose names or locations are unknown.
Families often expect to tell the judge who’s in the family and go home. Instead, the court appoints a lawyer nobody in the family chose to stand in for heirs who haven’t been identified or found. That lawyer will ask for records and will object if your family tree doesn’t hold up.
Travis County Probate Courts Local Rule 4.5(b): until the court signs an order dismissing an attorney ad litem or guardian ad litem, the ad litem must be served with all pleadings and given notice of hearings.
This catches experienced lawyers too. The appointment doesn’t end when the ad litem files a report or when the unknown heirs seem accounted for. It ends when the judge signs an order dismissing the ad litem, and until then every pleading and every setting goes to the ad litem. A hearing held without that service gives your opponent something to attack.
Estates Code Section 202.008 requires three groups to be made parties: each unknown heir, each person named as an heir in the application, and each person who, according to the county deed records on the date the application is filed, owns a share or interest in real property described in the application. Section 202.005 lists what the application must contain, including the heirs’ names and addresses, the decedent’s marriages and children, and a general description of the estate’s property.
When a contested heirship goes wrong, it’s usually because someone was left off the list of people. Under Section 202.203, an heir who wasn’t served can ask to correct the judgment by bill of review within four years after it’s signed, or at any time on proof of actual fraud, and can recover a share from the heirs the judgment named. The half sibling from a first marriage or the person holding a recorded interest in the land is where that exposure usually comes from. That’s also why the application has to name the family in full, since a thin one invites a demand to amend.
Travis County Local Rule 3.3: the court doesn’t send notices of settings. The party that obtained the setting must give notice of the date, time and duration to all other parties.
In a two-party case that’s a small chore. In an heirship case with many parties, an ad litem still in the case and relatives spread across other states, it’s real work. Whoever sets the hearing is responsible for the notice, and a hearing set without proper notice to everyone is open to attack.
Travis County has two statutory probate courts under Texas Government Code Section 25.2291(c), both at 200 W. 8th Street in Austin. The cause number decides which one hears your case.
Travis County Local Rule 1.3(a)(3), which follows Government Code Section 25.2293: the county clerk dockets odd-numbered probate, guardianship and trust cases in Probate Court No. 1 and even-numbered cases in Probate Court No. 2.
The number assigned at filing determines your judge, so there’s no choosing the court, although under Local Rule 1.3 the two judges may sit for each other and may transfer cases between the courts. Court mail goes to P.O. Box 1748, Austin, Texas 78767. If the land sits north of the county line, keep in mind that Williamson County has no statutory probate court. Government Code Section 25.2481 gives it five county courts at law, and a contested heirship filed there goes to one of them.
Heirship cases are won with records and with witnesses who can testify from personal knowledge about marriages, births, separations and who lived with whom. Marriage and divorce records, birth and death certificates, deeds and the memories of relatives old enough to remember the household make up the evidence. Expect the ad litem to look for all of it too.
Travis County Local Rule 4.3: the court prohibits affidavits signed by witnesses in lieu of live testimony or depositions unless authorized by law.
Local Rule 4.2(b): remote appearances are prohibited in a contested case when documentary evidence will be presented during the hearing. Under 4.2(a), the court doesn’t permit remote hearings or a witness’s remote appearance unless it’s absolutely necessary and complies with the law.
In practice, the elderly aunt whose memory holds your case together will need to come to the Second or Fourth Floor on 8th Street and testify. She can’t sign a statement and stay home, and with deeds and certificates in evidence she’s unlikely to be allowed to appear by video. Find those witnesses early, because the ones who matter most are usually the oldest.
If the real dispute is over a will someone says is invalid, read will contests in Travis County instead. If it’s over an inherited house the heirs can’t agree to sell, start with inherited real property disputes.
KREIG Austin, 7600 Chevy Chase Drive, Chase Park, Suite 300, Austin, TX 78752, by appointment only. (512) 273-7444
Bring the family tree as you understand it, any deeds or certificates you have, and the names of the people whose status is disputed. If a case is already on file, bring the cause number, since it tells us whether you’re in front of Judge Herman or Judge Chu.
The first consultation is free and usually short.