Petition to Determine Heirship

by Craig Galanter and Jason Hanna

When an individual dies, all of their property (real and personal) is transferred into their estate. Determining what happens to the deceased’s property can be a simple task, including taking the will to court, going through probate, and having the property distributed as per the terms of the will. Or, it can prove to be a stressful endeavor, especially when the decedent did not leave a will.

Without a will, pieces of the decedent’s real property can fall through the cracks and go unclaimed for years. Typically, this occurs with mineral interests that the decedent owned but did not tell anyone about. These mineral interests are then brought to life when an oil and gas producer determines that the minerals are owned by the decedent’s estate. In order to get the mineral interests out of the decedent’s estate, any interested person could file a Petition to Determine Heirship.

Here, we will answer some basic questions regarding a Petition to Determine Heirship:

What is the Purpose of filing a Petition to Determine Heirship: Any interested person who may be affected by the ownership of real property may petition the court to determine the following:

  • That decedent died without a will;
  • The identity of decedent’s heirs;
  • The share of the estate that each heir is entitled to; and
  • The portion of estate property not devised by will.

What happens after the Petition has been filed?  After the petition has been filed the court will set a time and date for a hearing.

How long does the process take? Typically, most heirship determinations take anywhere from two to eight weeks to complete, depending on how busy the county’s court system is.

Do I need an attorney to handle this matter? Yes. The probate petition is very fact intensive and if there are any errors or if the judge believes there is not sufficient information, then the petition will be rejected and will need to be corrected before the judge moves forward with a hearing. Doing it correct the first time with counsel saves the client both time and money.

More importantly, the estate of a Decedent is a legal entity, and if a non-lawyer files pleadings on behalf of the Estate, this may be construed as the unauthorized practice of law.

Additionally, it is imperative to record the court’s order in the county’s real property records to put other parties on notice of the new owners. The Determination of Heirs proceeding is used infrequently in Colorado, so it is beneficial to have your attorney follow up with the court and county assessor’s office to be certain that the transfer of ownership has been formally recognized and recorded.

Lastly, once the ownership has been recognized in the county assessor’s office, our office can draft and record any deeds should the client wish to convey the subject property.

Can I sell the property? Yes. In contrast to an Affidavit of Heirship, which must be on record for twenty years prior to conveying marketable title to the subject property, the heirs identified through an Heirship Determination lawsuit would receive marketable title to the subject property. This means the heirs would be legally empowered to sell or otherwise encumber the property, such as with a home equity loan, after the proceedings are complete and the judge signs the court order declaring the identity of the decedent’s heirs.