Dying Without a Will in Texas

Why you should not let the State of Texas plan for your passing

When a person dies in Texas without a will, Texas law determines who inherits and how much they inherit. In certain instances, property ownership is split between joint owners and given to persons removed from the decedent's life. Further, certain persons close to the decedent may not receive anything. To compound this, the estate is typically administered as a dependent estate which means that a possibly undesirable person will administer the assets, be required to post a costly bond, and pay for legal fees and costs associated with court authorization for most actions taken on behalf of the estate. The process can be time consuming, especially with overcrowded courts. Further, fights amongst heirs as to property valuations, etc. can deplete a once substantial estate.

Separate vs. community property

Separate property includes all property owned by either spouse prior to marriage and additionally that property received during marriage by gift or inheritance or the portion of a personal injury lawsuit that does not represent damages to loss of earnings. Community property is all other property acquired by either spouse during marriage to include income from separate property.

Transfer of separate property at death

When there is no spouse that survives

Property first passes to children or their descendants. If there are neither children nor descendants of deceased children, then to the mother and father in equal portions. However, if only the mother or father is still alive, then one-half to that parent and one-half to the brothers and sisters of the deceased (one half blood siblings only receive one half the amount of full blood siblings). Should one or more of the siblings pre-decease the decedent, that persons descendants will inherit what that sibling would have received. However, if there are no surviving siblings nor their descendants, the surviving parent shall inherit all of the estate. If there is no surviving parent, then the whole of the estate passes to the decedent's siblings and their descendants. If none of the above exist, then the inheritance shall be divided into two portions, one for the maternal grandparents, each in equal portions, and one for the paternal grandparents, each in equal portions. If one of the grandparents predeceases, that portion shall pass to that persons descendants. If there are no descendants, then the surviving grandparent takes all. However, if neither grandparent survives, the monies shall go to the children or their descendants in equal portions. If there are no descendants, the monies then go to the great grandparents or their descendants in proportion to what would have been the taking of the grandparents.

When there is a spouse that survives

When there are children, the surviving spouse receives one third of the personal estate with the rest of the personal estate going to the surviving children. If any children do not survive, such property shall go to their descendants. The surviving spouse is also entitled to a one third life estate in the lands of the deceased spouse with the remaining lands going to the children or their descendants.

When there are no children, the surviving spouse receives all of the personal estate and one half of the lands of the decedent with the other one half passing to the mother and father and their descendants. However, if no such descendants exist, then all of the lands go to the surviving spouse.

Transfer of community property at death

If there are no children or only children of both the deceased and surviving spouse, the surviving spouse takes all of the community property. However, if there remain one or more children of the deceased spouse or descendants of such children, then such children or their descendants take one half of the community estate which is all of the community estate attributable to the deceased spouse. In this instance, a surviving spouse is entitled to a life estate in the homestead as well as certain rights to certain personal property.

Adopted children

In Texas, adopted children give and take from their adopted parents the same as if they were natural children. Further, such adopted children are entitled to take from their biological parents although their biological parents are not entitled to take from them.

Illegitimate children

Children take from their biological mother. Children also take from their biological father and their presumed biological father. A person claiming inheritance as a biological child of a decedent may petition the probate court for a determination of right to inheritance. If the court finds by clear and convincing evidence that the individual is the child of the decedent, such child shall be entitled to take as other children of the deceased.

Advancements

In Texas, amounts given during the life of the decedent are presumed to be gifts and not advancements of an inheritance. However, acknowledgement by an heir in writing that the property received was an advancement or written declaration by the decedent at the time the property was given stating that it was an advancement will reduce that individual's receipt of property by the amount previously advanced.

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