At the Law Office of Carey Thompson, PC, we know that dealing with legal matters after a loved one dies can be a burden, even more so when there is no will in place. Under Texas law, a person who dies without a will is said to have died “intestate,” and his or her estate will be divided according to the state’s intestate succession laws.
If your loved one has died without a will, our experienced probate attorneys can help you navigate the estate administration process. When you consult with us, we will help you sort through your loved one’s estate and make sure your interests are protected. Trust our legal team to provide you with compassionate, efficient representation during this difficult time. Contact our El Paso office today to learn how we can help.
How Do the Intestate Succession Laws in Texas Work?
Intestacy laws are essentially the state’s estate plan when a person dies without a will. Generally, the decedent’s property will go to close family members; state law prioritizes surviving spouses and children. Any remaining property will then be divided among other surviving family members – parents, siblings, nieces, nephews, grandparents, and distant relatives according to a statutory formula. If no relatives can be located, then the property will go to the state.
While this seems straightforward, intestate succession laws are complicated. Deciding who gets which property depends on (1) whether the decedent had a surviving spouse, children, or other close relatives and (2) how the property is legally defined. The Texas Estate Code distinguishes between separate and community property.
Separate property is any property the decedent owned prior to getting married, including property acquired by an inheritance or as a gift. Community property consists of any property that was acquired during the marriage, excluding gifts and bequests.
For example, if the decedent was married and the couple had no children, his or her spouse inherits everything. If the couple had children, then the surviving spouse inherits all the community property and one-third of the separate property; the children inherit everything else.
In the event that there is no living spouse, the children will receive the entire inheritance, divided equally.
These determinations become more complex if the decedent had no spouse or children, however; in that case, the laws of intestacy allow parents, siblings, and other close family members to inherit.
While it is not difficult to figure out who qualifies as a close family member, there are situations that are not as clear. For example, the decedent may have fathered children with someone to whom they were not married and never acknowledged paternity, in which case the children must prove they are heirs through an affidavit of heirship.
What about domestic partners or half-siblings? The intestate succession laws of Texas govern these scenarios as well, but it takes an experienced probate attorney to resolve these and other situations arising from intestacy.
Certain Assets are Exempt From Intestate Succession Laws
The intestate succession laws of Texas only apply to assets that would have passed through a will. The following types of assets are exempt:
- Real property in which title is held jointly with right of survivorship
- Proceeds of a life insurance policy with named beneficiaries
- Retirement fund accounts such as IRAs and 401(k)s with a designated beneficiaries
- Property in a living trust
- Payable-on-death bank accounts
- Stocks or other securities held in a transfer-on-death (TOD) account
- Real estate or vehicles held with a TOD deed
If your loved one died without a will, then these assets will not be subject to division through intestate succession – the named beneficiaries will receive this property.
Laws of Survivorship
To inherit under Texas’ intestate succession laws, a potential heir must outlive the decedent by a minimum of 120 hours. This law only comes into play in rare situations, such as when two family members are involved in a catastrophic car accident and one dies before the other. For example, if your brother and father are in a fatal accident, and your father dies first, then your brother’s estate will receive a share of your father’s estate as long as your brother survived for at least 120 hours. Otherwise, his portion of the estate will be divided among the surviving family members.
Settling an Estate When There is No Will
To settle an estate for a person who dies without a will in Texas, you must file an affidavit with the probate court in the county in which the decedent resided. The affidavit must list:
- All known assets and liabilities of the estate
- The family’s history
- The identity of known heirs
The affidavit must be signed by all the heirs and two witnesses who do not have an interest in the state. For small estates – $50,000 or less – the probate court will issue an order approving the affidavit, and the property will be divided among the heirs.
For larger estates, however, the process is more complicated. One of the heirs must ask the probate court to be appointed as the estate administrator. The court can choose to name an administrator and will also hold a hearing to determine the identity of the decedent’s heirs.
Contact The Law Office of Carey Thompson, PC
If your loved one died without a will or you have questions about intestate succession laws, talk to an experienced probate lawyer. Contact our office today for a consultation.