If someone dies without leaving a valid last will and testament, the person is said to have died intestate. While not an ideal situation, Texas law provides a very detailed road map for family members to determine how the estate will be divided among those eligible to inherit the deceased’s property and assets.
Because the wishes of the decedent were not passed along to his or her family through a legal will in these instances, Texas law takes control of the probate process, and families may face delays in taking possession of their deceased family member’s estate. Below are the basics of what happens when someone dies intestate, and how Texas law dictates who receives what portion of an estate.
Appointing an Administrator
Before assets can be distributed, the court will first appoint an administrator to the estate. When you write a will, you designate an executor – or the person responsible for managing and distributing the decedents assets upon your death. When someone dies without a will, there still needs to be a person responsible for executing the will. In these instances, the probate court appoints an administrator to handle the same tasks an executor would perform. The administrator settles the estate’s debts and pays off the creditors, and also handles the distribution of assets to beneficiaries.
Texas law provides a list of people who may be appointed to serve as the administrator if there is no will. If there is a surviving spouse, they will be the first in line to serve as the administrator. Keep in mind that those who serve as administrators have legal authority over an estate; if you die without a valid will, you may have someone finalizing the transition of your assets you would not have selected or wanted anywhere near your financial dealings.
Texas Laws Will Determine How the Estate Is Divided
Texas has a detailed set of laws that govern intestate—that is, a will-less—succession. The law outlines who gains legal possession of assets and real property, subject to the estate paying the decedent’s debt. Dying without a will means the probate court must follow Texas law in determining how an estate is divided instead of what the decedent may have preferred.
Texas law has a strict formula detailing the order in which family members receive portions of an estate when someone dies without a will. This formula is outlined in the Texas Estates Code, and specifies essentially “who gets what” if no will exists. This is largely dependent on whether or not a person dies with or without a spouse.
Intestate Succession with No Spouse
If a person dies and does not have a spouse, the formula is as follows:
- The person’s estate passes to their children and/or their children’s descendants;
- If no child or child’s descendant exists or survives the person, the estate passes in equal portions to the person’s father and mother;
- If only one parent survives the person, the estate is divided equally between the surviving parent and the person’s siblings and/or siblings’ descendants OR if no siblings or siblings’ descendants exist, entirely to the one surviving parent;
- If neither of the parents are living, the person’s estate passes to the person’s siblings and/or siblings’ descendants.
If none of these relations survive, then the law extends to include paternal or maternal grandparents and their survivors. Essentially, one half of the estate would go to relatives on the mother’s side of the family, while the other half would pass to relatives on the father’s side of the family. If one side of the family has entirely died out, then the estate would pass entirely to the other side of the family.
Intestate Succession with a Surviving Spouse
If the deceased was survived by a spouse, the disposition of their property will depend on whether it was separate personal property or community property. In Texas, community property is the real property and earnings of both spouses during the time of the marriage. This includes all income earned, a house or other real estate purchased during the marriage, checking and savings accounts, and retirement accounts.
Community property either passes wholly to the surviving spouse or is split between the surviving spouse and any child or descendant not also related to the surviving spouse. For example, if Joe and Sarah marry and have two children and Joe dies, Sarah receives all of the community property acquired during their marriage. But if Joe has a child from a previous marriage, then Sarah inherits only half of the community property and the child from the other relationship receives the other half.
Personal property inheritance is even more complicated if there is no will.
- If a person has one or more children or a descendant of a child, then:
- The surviving spouse takes 1/3 of the personal estate;
- The child(ren) or descendants of the child(ren) receive 2/3 of the personal estate;
- The surviving spouse receives 1/3 of the person’s land in a life estate.
- If a person has no children and no descendants of children, then:
- The surviving spouse receives all of the personal estate;
- The surviving spouse receives ½ of the person’s land, while the other ½ is governed by the rules of descent and distribution listed above;
- If there are no surviving parents, siblings, or siblings’ descendants, then the surviving spouse is entitled to the entire estate.
So long as someone has the legal status as your relative as specified by the law outlined above, they will inherit part of your estate and property if you die without a will. Additionally, the law becomes even more complex when introducing additional variables, such as children from multiple relationships and/or blended families. Even if your relationship is estranged or you haven’t spoken to a relative for many years due to a disagreement, they could still inherit your assets because they are legally your relatives and are entitled to your estate by Texas law. This is precisely why a will is so important: it allows you to control who gets your property and how much they receive.
An Experienced Estate Planning Attorney Can Help Navigate An Intestate Estate
If your loved one died without a will, you should get legal advice to ensure you get your share of the estate as smoothly as possible. An attorney can help look out for your financial and legal interests. As you can see, Texas laws can be very detailed and complex. Even if there is no conflict among the heirs, it is best to get legal advice to understand the legal situation and ramifications.
Call a Houston Intestate Lawyer Today
If your loved one died without a will, or if you expect that you may have difficulties in the probate process, you need an experienced probate administration attorney to represent you. Towson Law works with clients in the probate process to protect their interests and to try to ensure things go as smoothly as possible. We work with families to address any issues that may arise during the probate process and come up with comprehensive solutions. Call us today at (817) 856-0270 or message us online to schedule an appointment.