Judicial Declaration of Heirship
When someone dies without leaving a Will, the most commonly used estate settlement proceeding is a judicial declaration identifying the heirs of the Decedent. In a judicial declaration of heirship, the Court makes a formal declaration as to the identity of the Decedent’s heirs, and the percentage each heir owns in the estate. The judgment allows the Decedent’s property to be divided and distributed among the heirs. The Court’s formal declaration is final.
The judicial declaration of heirship can avoid the probate process, but it also is used in conjunction with dependent administration, when someone passes away intestate (without a Will). A judicial declaration of heirship is also utilized when the Decedent died with a Will, but failed to dispose of all the estate assets.
Thus, the Decedent technically died partially testate and partially intestate, and an heirship proceeding may be required to determine the legal owners of any remaining estate assets. An heirship proceeding may be utilized when more than four years have elapsed since the Decedent’s death. Even if a Decedent had a Will, if the applicant does not probate the Will within four years from the Decedent’s death, then an heirship proceeding may be required if the Court will not admit the Will to probate as a Muniment of Title.
It is important to note that a judicial declaration of heirship is time-consuming and often costly alternative to probate. The Court is required to appoint an attorney ad litem to represent the unknown heirs, and that attorney will report his or her findings to the Court at the determination of heirship hearing. The Court also requires two disinterested witnesses to testify as to the Decedent’s family history at the time of the hearing.