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Who Inherits Your Estate if You Die With No Will in Texas?
While most of us understand that having a will is important, many simply put it off for “someday.” Unfortunately, “someday” is often too late. Passing without a valid will means that you have died intestate, and distributing your estate now becomes the responsibility and decision of the courts. Without a will, who gets your assets, who acts as guardian to your children, and even who administers the distribution of your estate is decided by the probate court, not you.
The Purpose of Having a WillYour will is the legal document that clearly defines your wishes regarding the distribution of your estate after you die. When a valid will is in place, it sets out how you want your estate distributed, who you want as the executor of your estate, who you choose as guardian to your children, and many other important decisions. Having a will ensures that you choose how your estate is distributed, not the court.
What Does Dying Intestate Mean?
If you die without a will, you will have died “intestate”. And no, it does not have anything to do with the intestines.
The word “intestate” entered the English language somewhere around the 14th century, from the Latin intestatus, which is composed of two parts: (1) in (meaning “not”) plus (2) testatus (meaning “having left a valid will”). The second of these, the Latin testatus, also gives us the English testate, meaning “having left a valid will.” Other English descendants of this cluster of latin words include detest,protest,testament, and testator.
When a person dies intestate, Texas intestacy laws will dictate how your estate will be distributed, regardless of how you may have wished.
During the intestacy probate process, the court will appoint an administrator who will be in charge of finding your heirs, compiling your assets, paying any remaining liabilities, and then distributing the remaining assets to heirs consistent with Texas Estates Code and intestate succession laws. In Texas, intestate succession will determine who and in what amounts your heirs will inherit your estate.
Unfortunately, without a will, the distribution of your assets under intestate succession may or may not be what you envisioned for your estate.
If You Are MarriedIntestate succession in Texas depends upon the marital status of the decedent, whether or not there were children, and how assets were held.
Under Texas intestate succession, if you die while you are married, your spouse will get a share of your estate depending on whether property is separate or community property, as well as depending upon how many children you have, and whether they are also your spouse’s children.
Any property acquired while you were married is considered community property under Texas law. If you die, your spouse will inherit all community property if there are no children. If there are children and they are all the current spouse’s, the spouse will still inherit the entirety of the community property. If there were children from a relationship outside the current marriage, only half of those assets would go to the current spouse and the other half to the other children.
Separate property is property that you own separately. You may have owned it prior to the marriage or even acquired it during the marriage as a gift or inheritance. For purposes of inheritance, separate property is divided into personal property, such as cash, investments, vehicles or other personal items and real property which is any land and homes attached to it.
In the case of a surviving spouse and children, the spouse would receive one-third of the separate personal property and a one third interest in separate real property, with the right to use it during their lifetime. Your children will receive everything else. Once the surviving spouse dies, the real property then reverts to the children.
The below chart, prepared by the Bexar County Probate Courts, illustrates what might happen to the estate of a Married person with or without a child or other descendants, who dies without a will:
If You Are Single (Unmarried, Widowed, or Divorced)
If you are single with no children when you die, your estate will pass to your parents, if they are both living, with both parents getting equal parts of the estate. If only one parent is alive, the remaining half will either go to your living siblings or their children. If there are no living parents, the entire estate will go to your siblings or their children. If there are no surviving parents, siblings, nieces or nephews, the estate is split between both sides of the family, each half passing to relatives on your mother’s and father’s side of the family. If there are no living descendants at all, the estate goes to the state of Texas.
If you are single and have children, the entire estate passes to your children or grandchildren, depending on the generational degree of the relationship. Younger generations will only inherit that portion of the estate that the next older generation would have inherited had they survived.
The below chart, prepared by the Bexar County Probate Courts, illustrates what might happen to the estate of an Unmarried person without a will:
Common-Law Marriage and Intestate Succession
Texas recognizes common-law marriages and consequently gives the same inheritance rights to common-law spouses as those in traditional marriages. In order to be considered a common-law spouse, you must have represented yourselves as married and lived in the state of Texas, as well as satisfied various criteria set forth under the codes that govern common law marriage. It is beyond the scope of this article, but suffice it to say that proving common law marriage in Texas is a difficult task.
Children, Stepchildren, and Adopted ChildrenIn today’s world, families represent various mixes of biological children, stepchildren, children born outside marriage, and adopted children. Texas intestate succession affords inheritance rights to children and adopted children (as well as children who are subject to adoption by estoppel), but not to stepchildren.
Assets That Are Not Passed Through a Will
Texas’ intestacy laws will not apply to assets that are passed outside the probate process. These include
Any assets held in a living trust
Any property or assets that are held jointly with rights of survivorship
Any bank accounts that have payable-on-death clauses
Any life insurance proceeds that name a beneficiary
Any retirement accounts such as IRAs, 401(k)s, or any other retirement account naming a beneficiary
Securities held in transfer-on-death accounts
Any property held under a transfer-on-death deed or title
There Will Usually Be Some Heir, Somewhere
In the state of Texas, estate law ensures that if there are heirs to be found out there somewhere, they will get the benefit of your estate before the state does. But the fact remains that without a will, your estate may be divided or inherited by people who you had no wish for it to go to. Administering these types of estates can also be costly to the estate and leave less assets for your loved ones.
Don’t leave your will for “someday.” Speak with an experienced Texas probate attorney today to ensure that the things you worked so hard for go to the people you choose, not the ones the court chooses. For more information, or to schedule a consultation, call the Law Offices of Ryan Reiffert at (210) 817-4388 or contact us at our website.