Can You Have an Heirship Determination if There is a Will?

Robert Ray

Heirship Proceedings in Texas

The Texas Estates Code provides that the probate court

“may conduct a proceeding to declare heirship when…a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate.” §202.002(1).

That section came into play in a case decided by the Amarillo court of appeals, 07-21-00137-CV.

Facts

In the case, a sister, Wanda, filed her brother’s will for probate, which left his property to her. She claimed that he lived in New Mexico but was domiciled in Texas. The will was admitted to probate, but the estate was never closed. Almost two years after the will was admitted to probate, a woman, Ginger, filed a bill of review claiming that she was the brother’s common-law wife and asked the trial court to determine the brother’s heirs. Ginger claimed that she was a pretermitted spouse under New Mexico law and that New Mexico law applied because the brother/husband lived in New Mexico.

Wanda filed a motion to dismiss the claim because the brother left a will, and she claimed that the court could not have an heirship determination if the decedent had a will, relying on §202.002(1). The trial court agreed and dismissed Ginger’s claims.

Appeal

When Ginger appealed, the court of appeals reversed and sent the case back to the trial court to hear Ginger’s claims. The appeals court ruled that §202.002(1) did say that a person had to die intestate before an heirship determination could be heard, but the additional language “and there has been no administration in this state of the person’s estate” made an exception for Ginger to have an heirship determination. Wanda cited a Texas Supreme Court which dismissed an heirship determination, but the appeals court noted that the administration had been closed in that case, it had not been closed in this case.

What Could Have Done

If Wanda had closed the case, would that have helped? There are reasons to leave an estate open, but in this case, if Wanda knew Ginger was around and might do something, it would have been better to close the estate.

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The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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