If you die in Texas, your estate will be distributed according to the Texas Estate Code. How your property will be distributed depends on two main factors – first, the type of property it is and, second whether you had a valid will.
According to the code property is either a probate asset or non-probate asset. Non-probate assets are those that are controlled by the terms of the property arrangement itself. For example - land held in joint tenancy with survivorship rights and contractual arrangements which specify the at death ownership such as life insurance and pay on death account at banks, savings and loan associations, and other financial institutions. How the remaining property is distributed depends on whether the decedent (person who has died) died with or without a valid Will. Dying without a valid Will is to die “intestate”.
- Unmarried with one or more descendants: all of the intestate’s property passes to the descendants.
- Unmarried with no descendants but a parent survives: There are a few possible outcomes: (a) If both parents than each gets 50% of the estate. (b) If one parent survives along with a sibling or sibling’s descendants, then the surviving parent gets 50% of the estate with the remaining 50% passing to the sibling(s) or their descendants. (c) if one parent survives but there are no siblings or descendants of a sibling, then the surviving parent receives 100% of the estate.
- Unmarried with no surviving descendants or parents: the entire estate passes to siblings and their descendants.
- Unmarried with no surviving descendants, parents, siblings or their descendants: the estate is divided into 2/2 with ½ going to paternal grandparents, uncles, cousins, etc., and the other half going to the maternal side.
- Unmarried with no surviving heir: the estate will escheat to the state of Texas.
Probate property of a married intestate will be categorized as either community property, real property, and personal property. Generally speaking, Community property is property that was acquired during the marriage while real personal property is property that was acquired prior to the marriage. Of course, there are exceptions to both of these general definitions.
- No surviving descendants: community property is now owned 100% by the surviving spouse.
- If surviving children or their descendants: (a) No non-spousal descendants: if all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will receive 100% of the community property. (b) Non-spousal descendants: the surviving spouse receives 50% of the community property, the descendants of the deceased spouse inherit the deceased spouse’s 50% of the community property.
Real and Personal Property
- Surviving descendants: (a) Personal property: the surviving spouse receives 1/3 with the remaining 2/3 passing to the children or their descendants. (b) Real property: the surviving spouse receives a life estate (use of the property for the rest of their life) and 1/3 of the deceased spouse separate real property. The other 2/3 of the real property will pass to the deceased spouse’s children or their descendants along with the property being used by the surviving spouse after the death of the surviving spouse.
- No surviving descendants: (a) Personal property: all separate personal property passes to the surviving spouse. (b) Real property: surviving spouse inherits ½ of the separate real property outright with the remaining ½ passing to the parents, siblings, and descendants of siblings as if the intestate died without a surviving spouse.
- No surviving parents, siblings, or descendants of siblings: surviving spouse inherit all of the separate and real property.
As you can see dying without a valid will in Texas can lead to the distribution of your estate contrary to your wishes; litigation may arise between your loved ones concerning the distribution of your estate; or laws may be modified without your knowledge that may impact how your estate is distributed. You can see why it is imperative for you to have a valid will so your wishes concerning the distribution of your estate can be honored. Even if we are not the ones to help you navigate estate planning, please make sure that your wishes are carried out.