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What Happens If You Die Without A Will In Texas

May 6, 2015 – Having a will allows you to decide how and to whom your assets are distributed. But if you die without a will, your assets will be distributed under Texas intestate succession laws that do not take into account your wishes and personal circumstances.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples.

  • Funds in an IRA, 401(k), or other retirement accounts
  • Property you have transferred to a living trust
  • Property you own with someone else in joint tenancy
  • Life insurance proceeds

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if there is not a named beneficiary on these assets then they would have to go through probate.

Under intestate succession, who gets what depends on whether or not you have living children, parents or other close relatives when you die. Moreover, dying without a will results in a court appointing an attorney Ad Litem. The Ad Litem is not representing the best interests of your loved ones, but rather representing the unknown heirs. The end result will not only delay the process, it will also drive up the expenses which the estate must pay before any assets can be distributed to loved ones.

For Single People with No Children

If you are single and die without a will in Texas, the Texas Probate Code dictates that your assets will be distributed as follows:

  1. Your estate will pass equally to your parents if both are living. If only one parent is alive, and you don’t have any siblings, then your entire estate will pass to your surviving parent.
  2. However, if you do have siblings or descendants of siblings (nieces and nephews), then your surviving parent would receive only have of the estate, and the remaining one half would be divided among your siblings or their descendants.
  3. All of your estate would pass to your siblings of their descendants if you have no surviving parents.
  4. If you have no surviving parents, siblings or descendants of siblings, then the estate is divided into two halves with one half passing to relatives on your mother’s side of the family and the other one half passing to the relatives on your father’s side.
  5. If one side of the family has completely passed on, the entire estate would pass to the surviving side of the family.
  6. If you have no surviving heir, the entire estate would pass to the State of Texas.
  7. Perhaps you have a close friend who you would have wanted to share in your estate – that would not be possible without a will.
For Single People with Children

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning for example, that all are your children or all are your grandchildren), then the assets will be divided equally between them.

However, if your descendants are of different degrees of relationship, (meaning some of your children predecease you, leaving children or grandchildren of their own) then the younger generation would only be entitled to the share what the older generation would have received had they survived.

For Married People

In Texas, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property – as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.

Community Property

If you are married and are survived by a spouse and children

  1. Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse.
  2. Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only their one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property.

Separate Property

If your property is characterized as separate property, the distribution scheme is different:

  1. If you are survived by spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until their death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.
  2. If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate property. But if you have surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate real property with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.