Many people in Texas go to a Texas attorney and have their Wills drafted because they want to control who will get their property when the die. However, sometimes people do not have Wills. If a person dies without a Will directing to whom their property passes, the person dies “intestate” and the laws of intestacy determine who gets the deceased’s property. The first question is whether the person died while married or single, and the laws of distribution are different depending on the status of survivors to the decedent. In this article we will discuss Texas laws regarding intestacy for a married person. To avoid intestacy, it is wise to contact a probate attorney such as Austin probate lawyer Farren Sheehan for help drafting a Will.
What if the Person Did Not Have a Will
If the person died in Texas without a Will, his property passes to his heirs under Texas law. This is known as intestate succession. Without a Will, the estate passes to the descendants according to Texas law even if the decedent said while he was alive that he preferred that his property be left in a different way.
How the property passes and to whom under Texas intestate laws is very complicated. Often families in Austin, Pflugerville, Cedar Hill, and Round Rock will need an Austin probate attorney to help sort this out. There are a number of considerations, including whether the person was married or single, if the estate property was community or separate property, and who and what lineage the survivors hold.
Intestate Distribution for a Person Who Died While Married
Texas laws favor the surviving spouse inheriting the estate, but they may not always inherit the entire estate, especially if the deceased spouse had children with anyone other than the current spouse. This is because Texas laws distinguish property between separate and community property. Separate property is property that is owned before a marriage or obtained during marriage by gift or inheritance and kept separate from a spouse. Community property is all property, other than separate property, that is obtained by either spouse during marriage. Property acquired during a married is presumed to be community property.
Property may also be real property (land) or personal property (things). Real property may be separate or community property and personal property may be separate or community property, depending on when and how it was received and kept.
When a person dies without a Will and leaves community property, the real or personal community property passes as in the following examples:
- Example 1: Husband (H) dies without a Will, and is survived by Wife (W). They did not have any children. All of the community property passes to W.
- Example 2: Husband (H) dies without a Will, and is survived by Wife (W) and by their three children that they had together (A, B, and C). All of the community property passes to W.
- Example 3: Husband (H) dies without a Will, and is survived by Wife (W) and by their three children that they had together (A, B, and C) and another child (D) that H had before he married W. In this example, A, B, C, and D share equally in H’s