Understanding Applications to Determine Heirship in Texas?

When a person dies without a valid will in Texas, families are left to sort out a whole lot of loose ends. A house that is still in the decedent’s name. A bank account that is frozen. Documents demanded by title companies and financial institutions that you don’t have and don’t know how to get. Sorting out those issues requires a probate proceeding called a determination of heirship. The proceeding clears title and transfers property to a decedent’s legal heirs when someone dies without a Will in Texas, or a Will does not address all property.

What Is a Determination of Heirship Proceeding?

A determination of heirship is a court proceeding filed in the county where the person lived, or where the person owned property. 

The application explains the deceased person’s family history, lists the known heirs, and the property that the deceased person owned. The court appoints an attorney ad litem to protect the interests of heirs who may be unknown or hard to find. That lawyer investigates to make sure there are no additional heirs and reports back to the judge.

Before the hearing, all known heirs receive legal notice. At the hearing, two disinterested witnesses, usually people who know the family history but do not inherit, testify about the decedent’s family background. If there is sufficient evidence about who the heirs are, the Judge will sign a Judgment Declaring Heirship. That judgment names each heir and sets the fractional shares each will inherit.

Why the Judgment Matters

Without a Judgment Declaring Heirship, heirs often cannot sell or refinance real property, and banks may not release funds. Title companies usually require a certified copy of the judgment before they insure a sale. With the judgment in place, the court can also appoint an administrator when needed to collect assets, pay debts, and distribute property according to the shares the court has set.

When is a Determination of Hership Proceeding Needed in Texas

Non-probate assets, such as life insurance and retirement accounts with named beneficiaries, pass outside the court process. Payable-on-death and transfer-on-death accounts do as well. Those transfers do not require a determination of heirship.

A Determination of Heirship is usually necessary only if there are assets in the decedent’s name, such as real estate or a bank account without a beneficiary. It is also useful when there is a will that doesn’t dispose of all property, or when there are questions about who qualifies as an heir.

Some Estates Qualify for Simpler Options

Small Estate Affidavit

A small estate affidavit may work if the decedent died without a will, owned no real property other than a homestead if there is a surviving spouse or dependent children, the total value of probate assets, excluding the homestead and other exempt property, does not exceed the statutory limit, and the total assets exceed the total known debt. 

Affidavit of Heirship

For real estate, a carefully prepared affidavit of heirship signed by two disinterested witnesses and recorded in the county records sometimes satisfies a title company. It doen’t carry the certainty of a court judgment and is not advisable if there are facts in dispute, or if creditors or missing heirs are a concern.

How Texas Intestacy Rules Affect the Shares

Texas intestacy statutes control who inherits when there is no will. They look at whether the property is community or separate, whether the decedent died married, and whether there are children from another relationship. A surviving spouse may receive different shares of community and separate property depending on those facts. These rules are detailed, and outcomes are not always intuitive. A court order gives heirs clarity.

This article was written on March 11, 2015 and updated on December 10, 2025.