CHAPTER III. DETERMINATION OF HEIRSHIP - Texas Statutes

PROBATE CODE

CHAPTER III. DETERMINATION OF HEIRSHIP

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. Jan. 1,

1972; Acts 1977, 65th Leg., p. 1521, ch. 616, Sec. 1, eff. Aug.

29, 1977.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1170, Sec. 2.02, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. Jan. 1,

1972; Acts 1977, 65th Leg., p. 1522, ch. 616, Sec. 2, eff. Aug.

29, 1977; Acts 1979, 66th Leg., p. 1744, ch. 713, Sec. 7, eff.

Aug. 27, 1979; Acts 1983, 68th Leg., p. 629, ch. 139, Sec. 1,

eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 693, Sec. 1, eff.

Sept. 1, 1985.

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. Jan. 1,

1972; Acts 1979, 66th Leg., p. 1745, ch. 713, Sec. 8, eff. Aug.

29, 1979; Acts 1997, 75th Leg., ch. 1130, Sec. 1, eff. Sept. 1,

1997; Acts 2001, 77th Leg., ch. 664, Sec. 2, eff. Sept. 1, 2001.

Text of section as repealed by Acts 2009, 81st Leg., R.S., Ch.

680, Sec. 10

Text of section as amended by Acts 2009, 81st Leg., R.S., Ch.

602, Sec. 4

Without reference to the amendment of this section, this section

was repealed by Acts 2009, 81st Leg., R.S., Ch.

680, Sec. 10(a), eff. January 1, 2014.

Sec. 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, entries in the judge's probate

docket, 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 judge's probate docket of

that 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, Sec. 4, eff. Jan. 1,

1972.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

602, Sec. 4, eff. June 19, 2009.

Acts 2009, 81st Leg., R.S., Ch.

680, Sec. 10(a), eff. January 1, 2014.

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. June 12,

1969; Acts 1991, 72nd Leg., ch. 895, Sec. 5, eff. Sept. 1, 1991;

Acts 1999, 76th Leg., ch. 1538, Sec. 1, eff. Sept. 1, 1999.

Text of article effective until January 01, 2014

Sec. 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, Sec. 2, eff. Sept. 1,

1999.

Text of section as repealed by Acts 2009, 81st Leg., R.S., Ch.

680, Sec. 10 effective January 1, 2014

Sec. 53. EVIDENCE; UNKNOWN PARTIES AND INCAPACITATED PERSONS.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch.

602, Sec. 5

(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 judge's

probate docket.

(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, Sec. 4, eff. Jan. 1,

1972; Acts 1995, 74th Leg., ch. 1039, Sec. 6, eff. Sept. 1, 1995;

Acts 2001, 77th Leg., ch. 664, Sec. 3, 4, eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

602, Sec. 5, eff. June 19, 2009.

Acts 2009, 81st Leg., R.S., Ch.

680, Sec. 10(a), eff. January 1, 2014.

Text of article effective until January 01, 2014

Sec. 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, Sec. 1, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 1, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 1, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 1, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 1, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. Jan. 1,

1972.

Text of article effective until January 01, 2014

Sec. 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, Sec. 4, eff. Jan. 1,

1972; Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 9, eff. Aug.

29, 1979.

Text of article effective until January 01, 2014

Sec. 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.