Determination of Heirship
Useful when there is no will & estate is large
Sometimes a deceased person dies without a Will. This is referred to as dying “intestate.” In this case, there is a question about who are the rightful heirs of the deceased person’s estate (In legal terms, “estate” means “property”). In some cases, there may be a dispute as to the identity of the person’s heirs, such as a common law spouse. In other cases, a third party, such as a bank or insurance company, will want a court order determining who the heirs of the estate are before giving the deceased person’s assets away.
The Determination of Heirship procedure is a court procedure that declares the identities the decedent’s heirs and, if desired, allows an administrator to be appointed to administer the estate. The Determination of Heirship procedure is one of the most expensive procedures available to the decedent’s heirs. This procedure is typically used when the decedent had no will, the estate is large or has more real estate than the homestead, or there is a need to administer the decedent’s estate.
- Application. This is a written document, submitted to the court, requesting the court issue an order listing the heirs.
- Notice. After filing the application with the court, your attorney would place an ad in a local newspaper notifying the public that you are seeking the identity of the heirs of an estate.
- Appointment of an attorney ad litem. The court will appoint and independent investigator (called an “attorney ad litem”) to discover the identity of any heirs not listed in your application.
- Discovery process. The attorney ad litem and your attorney will interview witnesses (at least two), review documents such as birth certificates, death certificates, marriage licenses and divorce decrees to see if there is a chance that there were any unknown heirs. Once completed, the attorney ad litem will prepare a written report.
- Hearing. Your attorney, the attorney ad litem and at least two witnesses will appear in court. (Some courts also require the applicant to appear.) During this hearing, your attorney and the attorney ad litem will ask the witnesses questions (called an “examination”) and discuss the family life of the deceased. When complete, the attorney ad litem will discuss the findings in the report and the judge will make a determination of who are the heirs of the deceased, and issue a judgment. (A “judgment” in this case is a court order, in writing, reciting that the deceased person is dead, the date of death and a list of who are the heirs.)
- Proof. Once the judgment is issued, copies of the judgment can be used to show proof as to who is entitled to estate assets.
Frequently Asked Questions
- No valid will (or the heirs and the beneficiaries agree to disregard)
- The value of the estate is greater than $75,000
- Multiple real estate properties need to be transferred to heirs
- Administration of estate is required
NOT Recommended When
- A Will exists (unless the heirs & beneficiaries agree to disregard)
- The decedent’s estate is small (assets are less than $75,000)
- No administration of estate is required
- Another less expensive process is available