Texas Estates Code · Chapter 202
Determination of Heirship
When someone dies without a will, the first question is who the law says inherits, and the second is how to prove it to a title company, a bank, or a court. A determination of heirship answers both. It is a court proceeding that ends in a judgment naming the heirs and their shares, and it is the required first step before an intestate estate can open an independent administration. Below is the statute, in plain English, a guide to whether you need one, and how the proceeding works in the Tarrant County probate courts.
What it is
A court proceeding that ends in a judgment naming a decedent’s heirs and each heir’s exact share.
When you need it
Usually when someone dies with no will and there is real property or an independent administration to open.
What it produces
A binding, final judgment, the certainty an affidavit of heirship cannot give.
Where you file
The Tarrant County Clerk’s Probate Division, assigned to one of two statutory probate courts, with an attorney ad litem appointed.
Do You Need a Determination of Heirship?
Answer a few questions to see whether a court proceeding under Chapter 202 is the right step, or whether an affidavit or another procedure fits better. This is general information, not legal advice about your specific estate.
Did the person leave a valid will?
Logic follows Tex. Est. Code §§ 202.002, 202.004, and 401.003(b), with Ch. 203 and 205 as alternatives. Read the text below.
What a Determination of Heirship Is, and When It Is the Right Tool
When a person dies with a will, the will names who inherits. When a person dies without one, Texas law names the heirs instead, through the rules of descent and distribution, but nobody has yet established, with any authority, who those heirs actually are. A determination of heirship is the court proceeding that fills that gap. It takes the family history, tests it with outside witnesses and an attorney appointed to look for missing heirs, and ends in a judgment that names each heir and each heir’s share of the estate.
That judgment is the difference between this proceeding and its lighter cousin, the affidavit of heirship. An affidavit is a sworn statement recorded in the deed records; it is fast and inexpensive, but it is only evidence, and it becomes automatically persuasive only after five years on file. A determination of heirship is a court ruling from day one. When a title company will not insure a sale on an affidavit, when the heirs do not agree, or when the estate needs an administration opened, the certainty of a judgment is worth its higher cost.
There is one situation where a determination of heirship is not optional but required. Before a Tarrant County probate court will appoint an independent administrator of an intestate estate, it has to know who the heirs are, so Section 401.003(b) makes the heirship proceeding the mandatory first step. That is the single most common reason families end up here: they need to administer a parent’s estate, there was no will, and the court cannot appoint anyone until heirship is settled.
Determination of Heirship vs. the Alternatives
| Procedure | Best when | Court proceeding? | Binding judgment? |
|---|---|---|---|
| Determination of Heirship (Ch. 202) | No will, and you need certainty, an administration, or a disputed estate resolved | Yes, with an attorney ad litem | Yes, final judgment |
| Affidavit of Heirship (Ch. 203) | No will, clearing title to a house, no dispute | No, recorded affidavit | No, prima facie after 5 years |
| Small Estate Affidavit (Ch. 205) | No will, estate $75,000 or less, all heirs agree | Filed, judge approves | Limited |
| Independent Administration (Ch. 401) | Intestate estate with assets or debts to manage | Yes, after heirship is determined | Yes |
The choice usually comes down to certainty against cost. An affidavit of heirship is the cheapest way to document heirs when nobody is fighting and a title company will take it. A determination of heirship costs more, largely because of the attorney ad litem, but it produces a judgment no one can second-guess, and it is the required predicate for an independent administration of an intestate estate.
How a Determination of Heirship Works in the Tarrant County Probate Courts
Chapter 202 is state law, but the proceeding runs in Tarrant County, in front of Probate Court No. 1 or No. 2. Here is what the statute looks like on the ground in Fort Worth:
- Where it is filed. The application is e-filed with the Tarrant County Clerk’s Probate Division under the venue rules of Section 33.004, and assigned to Probate Court No. 1 or No. 2, the same courts that hear administrations.
- The attorney ad litem (Section 202.009). The court appoints an attorney ad litem to represent unknown and missing heirs. In Tarrant County this is standard, and the ad litem will want the family history documented, so gathering birth, marriage, and death records early keeps the case moving.
- Citation by posting and publication (Sections 202.051-202.052). Known heirs are served, and unknown heirs are cited by publication and posting. Those notice steps run on statutory clocks, which is much of why an heirship proceeding takes longer than an affidavit.
- Two disinterested witnesses (Section 202.151). The family history is proved by two witnesses who knew the family but do not inherit. A recorded affidavit of heirship under Chapter 203 can supply that testimony, which is how the two procedures often work together.
- The judgment, and recording it (Sections 202.201, 202.206). The judgment names the heirs and their shares. A certified copy is recorded in the Tarrant County deed records so it sits in the chain of title on any real property.
The practical takeaway
A determination of heirship is the certainty option, and often the required one when there is no will and an estate to administer. If you need it handled, our intestate succession practice covers the heirship application, the ad litem process, and the judgment, and pairs it with the administration when the estate needs one, on a flat fee agreed before we start.
The Statute: Texas Estates Code Chapter 202
Chapter 202, on the proceeding to declare heirship. The text below is the operative language, public record, lightly condensed where a subsection is procedural plumbing (flagged inline), with a plain-English note under each section. The complete official version is on the Texas Legislature site.
Sec. 202.001. General Authorization for and Nature of Proceeding to Declare Heirship
In the manner provided by this chapter, a court may determine through a proceeding to declare heirship: (1) the persons who are a decedent’s heirs and only heirs; and (2) the heirs’ respective shares and interests under the laws of this state in the decedent’s estate or, if applicable, in the trust.
This is the whole point of Chapter 202 in one sentence. A determination of heirship is a court proceeding that ends in a judgment naming who the heirs are and exactly what fraction of the estate each one takes. It answers the two questions intestacy always raises, who inherits and how much, with the authority of a court order rather than a family’s say-so.
Sec. 202.002. Circumstances Under Which Proceeding Is Authorized
A court may conduct a proceeding to declare heirship when: (1) 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; (2) there has been a will probated in this state or elsewhere or an administration in this state of a decedent’s estate, but: (A) property in this state was omitted from the will or administration; or (B) no final disposition of property in this state has been made in the administration; or (3) it is necessary for the trustee of a trust holding assets for the benefit of a decedent to determine the heirs of the decedent.
The main trigger is the first one: someone died without a will, owned property in Texas, and no administration has been opened. The chapter also reaches two less common cases, property a will or administration left unresolved, and a trustee who needs the heirs identified. If a loved one died intestate and left a house or an account, this is the door you are usually walking through.
Sec. 202.004. Persons Who May Commence Proceeding
A proceeding to declare heirship of a decedent may be commenced and maintained under a circumstance specified by Section 202.002 by: (1) the personal representative of the decedent’s estate; (2) a person claiming to be a creditor or the owner of all or part of the decedent’s estate; (3) if the decedent was a ward with respect to whom a guardian of the estate had been appointed, the guardian of the estate; (4) a party seeking the appointment of an independent administrator under Section 401.003; or (5) the trustee of a trust holding assets for the benefit of a decedent.
You do not have to be an heir to start the case. An heir claiming ownership is the usual applicant, but a creditor, a personal representative, a trustee, or a party who wants to open an independent administration can also bring it. That last one matters: the family member who wants to serve as independent administrator of an intestate estate files the heirship proceeding as the first step.
Sec. 202.005. Application for Proceeding to Declare Heirship
A person authorized by Section 202.004 must file an application in a court specified by Section 33.004 to commence the proceeding. The application must state: (1) the decedent’s name and date and place of death; (2) the names and physical addresses where service can be had of the decedent’s heirs, the relationship of each heir to the decedent, whether each heir is an adult or minor, and the true interest of the applicant and each of the heirs in the estate; (3) all material facts and circumstances known to the applicant if the date or place of death or an heir’s name or address is not definitely known; (4) that all children born to or adopted by the decedent have been listed; (5) that each of the decedent’s marriages has been listed, with the date, the spouse’s name, the date and place of any termination, and facts showing whether a spouse had an interest in the property; (6) whether the decedent died testate and, if so, what disposition has been made of the will; (7) a general description of the property subject to distribution or held in trust; and (8) an explanation for the omission of any required information.
The application is a sworn family tree with a property list attached. It has to lay out every heir and how each is related, account for every marriage and every child, state whether there was a will, and describe the property at stake. The detail is not busywork: the judgment can only be as reliable as this application, and a gap here is what an omitted heir later uses to reopen the case.
Sec. 202.008. Required Parties to Proceeding
Each of the following persons must be made a party to a proceeding to declare heirship: (1) each unknown heir of the decedent who is the subject of the proceeding; (2) each person who is named as an heir of the decedent in the application filed under Section 202.005; and (3) each person who is, on the filing date of the application, shown as owning a share or interest in any real property described in the application by the deed records of the county in which the property is located.
Everyone with a possible stake has to be brought in, including heirs nobody can name yet. That is why the case is captioned against the known heirs and against the "unknown heirs" as a class, and why the record of title on any real property matters, the current record owners are parties too. Making the right parties is what makes the judgment bind them.
Sec. 202.009. Attorney Ad Litem
(a) The court shall appoint an attorney ad litem in a proceeding to declare heirship to represent the interests of heirs whose names or locations are unknown.
(b) The court may expand the appointment of the attorney ad litem to include representation of an heir who is an incapacitated person on a finding that the appointment is necessary to protect the interests of the heir.
This is the safeguard that makes an heirship judgment trustworthy, and a line item families do not expect. The court must appoint an attorney ad litem to stand in for any unknown or missing heirs, investigate the family history, and make sure nobody with a real claim is quietly cut out. The applicant’s estate pays that attorney’s fee, which is part of why a determination of heirship costs more than an affidavit.
Sec. 202.151. Evidence in Proceeding to Declare Heirship
(a) The court may require that any testimony admitted as evidence be reduced to writing and subscribed and sworn to by the witnesses.
(b) Testimony regarding a decedent’s heirs and family history must be taken from two disinterested and credible witnesses in open court, by deposition, by a recorded statement of facts that satisfies Section 203.001, or in accordance with the Texas Rules of Civil Procedure.
(c) If, after a diligent search, only one disinterested and credible witness can be found who can make the required proof, the testimony of that single witness may be taken in the same ways.
The heirs are proved by outside witnesses, not just the family’s word. Two disinterested and credible witnesses, people who knew the family but do not inherit, testify to the family history, and a recorded affidavit of heirship under Chapter 203 can supply that proof. This is exactly where an affidavit of heirship and a determination of heirship connect: the affidavit can become the evidence in the court proceeding.
Sec. 202.201. Required Statements in Judgment
(a) The judgment in a proceeding to declare heirship must state: (1) the names of the heirs of the decedent who is the subject of the proceeding; and (2) the heirs’ respective shares and interests in the decedent’s property.
(b) If the proof in a proceeding to declare heirship is in any respect deficient, the judgment in the proceeding must state that.
The payoff is a court order that names each heir and each heir’s exact share. That judgment is what a title company, a bank, or a buyer relies on, because it carries a court’s authority rather than a family’s assertion. If the proof fell short somewhere, the judgment has to say so, which keeps a thin case from masquerading as a clean one.
Sec. 202.202. Finality and Appeal of Judgment
(a) The judgment in a proceeding to declare heirship is a final judgment.
(b) At the request of an interested person, the judgment may be appealed or reviewed within the same time limits and in the same manner as other judgments in probate matters.
The judgment is final and appealable like any other, which is the certainty an affidavit of heirship cannot offer. That finality is the reason to choose this route when the stakes are high: once the appeal window closes, the question of who the heirs are is settled, subject only to the narrow bill-of-review path an unserved heir has under Section 202.203.
Also in Chapter 202, summarized here for length
- Sec. 202.006. Request for Determination of Necessity for Administration (bundled with the heirship application within four years). See the official text.
- Sec. 202.051-202.057. Notice: citation by qualified delivery, by publication on unknown heirs, required posting, waiver, and the affidavit of service. See the official text.
- Sec. 202.101-202.103. Transfer of a pending heirship proceeding when an administration is later opened or a will is probated. See the official text.
- Sec. 202.203-202.206. Correction by an unserved heir, protection of bona fide purchasers, effect on creditors, and recording the judgment in the deed records. See the official text.
Source: Texas Estates Code, Chapter 202, published by the Texas Legislative Council at statutes.capitol.texas.gov. Statutory text is in the public domain. The plain-English notes, Tarrant County guidance, and decision guide are original and © Fort Worth Probate Attorney.
Determination of Heirship Questions
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