Contested Heirship in El Paso County

When someone dies without a will, or with a will that does not dispose of everything, a court has to decide who the heirs are and what fraction each one takes. The result is a judgment, it binds, and it is what a title company will read before anyone can sell the land.

Who can start one

A proceeding to declare heirship can be commenced by the personal representative of the estate, by a person claiming to be a creditor or the owner of all or part of the estate, by the guardian of the estate in certain circumstances, and by other parties the statute names. In practice the applicant is usually an heir who needs clear title, or a creditor who needs to know who to pursue.

Tex. Est. Code § 202.004.

The attorney ad litem is not optional

The court shall appoint an attorney ad litem to represent the interests of heirs whose names or locations are unknown. That appointment is what makes an heirship judgment worth something later, and it is also why the known heirs cannot simply agree among themselves and file the agreement.

Expect the ad litem to ask real questions: who else might the decedent have had a child with, what happened to the first marriage, which relatives has nobody heard from. Answering those thoroughly at the start is cheaper than having the judgment attacked afterward.

Tex. Est. Code § 202.009(a).

Where these actually get fought

• Informal marriage. A surviving partner claims a common-law marriage; the children deny it. The answer moves a large share of the estate.
• An unacknowledged child. Someone appears with a claim to be a child of the decedent, and the family has never met them.
• A divorce that was never finished. The parties separated decades ago, both moved on, and nobody ever got a decree.
• Community or separate. Property bought during a marriage, property brought into it, and property traded for inherited land each produce different shares.
• Property outside Texas. An El Paso estate often holds land in New Mexico or across the border, and the characterization question has to be answered under more than one body of law.

Why the title company is driving the schedule

Most heirship proceedings are not started because the family wants a judicial ruling on their relationships. They are started because a buyer’s title company will not insure the sale without one. That means the proceeding is often on a closing clock, and a contest that adds an ad litem investigation and a hearing can cost the family a sale. Knowing early that a contest is coming is worth real money here.

Where it is heard

El Paso County has two statutory probate courts, and in a county with statutory probate courts they have exclusive jurisdiction over probate proceedings whether contested or not.

• Probate Court No. 1500 E. San Antonio Ave., Suite 1201, El Paso, TX 79901
• Probate Court No. 2500 E. San Antonio Ave., Suite 422, El Paso, TX 79901

Tex. Gov’t Code § 25.0731(b); Tex. Est. Code § 32.005.