Dear Mr. Premack: My father was divorced from my mother and remarried for many years. We were not on speaking terms. After he passed away I asked his wife if he left a Will and she said no. I checked with the County Clerk to see if anything was filed and was told that an Affidavit of Heirship was on file. I have never heard anything from the court as of yet. Do my two siblings and I have any options? – MC

Your rights are clearly defined by state law. Since your father had no Will, the laws of descent and distribution applied at the time of his death to determine the identity of his heirs. Those laws set out various patterns that must be matched to the actual facts in each particular situation to determine who gets what.

When there is a second marriage with children born to a prior marriage, those children are entitled to a substantial inheritance from their parent. On the other hand, when there has only been one marriage and all the kids were born to that marriage, the wife/mother inherits the estate, not the children.

Checking with the county clerk for filings on the estate was a good move. You found out that an Affidavit of Heirship has been filed. Section 52 of the Texas Probate Code says that "A statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent" which has been on record with the county clerk for at least five years is prima facia evidence that the facts in the affidavit are true.

There are some weaknesses in using an Affidavit to establish the heirs’ identities. First, a court generally does not see or rule on the validity of an Affidavit of Heirship, unless one of the heirs is left out and files suit. That is why you never heard anything from the court or an estate representative.

Second, the affidavit is valid on its face but can be disproved with contradictory evidence. You should obtain a copy of the Affidavit filed by your father’s wife. Read it carefully to be sure that the facts are correct: you and both of your siblings should be included in the genealogy disclosed in the Affidavit.

If there are errors or omissions, you have not lost your legal rights. When an error or omission is pointed out, hopefully it would be voluntarily corrected. If not, errors can be corrected by filing suit, likely in the form of a "determination of heirship" in probate court. There you would offer evidence of the true familial relationships, and the judge would issue an Order properly applying the law to the facts.

If the existing Affidavit correctly includes you and your siblings, you are recognized as owning one-half of the community property estate (his wife keeps the other half). You own a two-thirds interest in his separate property personal estate (like money and investments). You also get his separate property real estate, subject to his wife’s life estate in one-third of it and any homestead rights that she may have by virtue of the marriage.