Whether it’s because they think it’s unnecessary or is afraid of facing death and the unknown, many people never sign a will. This can create a myriad of problems, expense, and hoops for a family to jump through, but your estate can still be administered without a will.
When you die with a will the process is fairly simple because you have laid out your wishes, hopes, appointed someone to be your executor, and perhaps even provided instructions regarding minor children. Without a will, the court looks to a set of laws created in the Texas Estates Code often referred to as intestate succession. (Intestate = without a will).
When someone dies intestate, an “interested person” (for example, a spouse, child, or parent) who wants the estate administered files an Application to Determine Heirship. This is a process where the court will determine who the legal heirs of the Decedent are. Texas laws determine who is an heir and what percentage of an estate each person will receive. Some key differences in how property is divided are whether there is separate property, community property, real property, and/or personal property. Here are some common situations we see in those heirship applications (This list is not exhaustive and each case may present unique considerations):
Married and all children of the same marriage.
This is the easiest situation. Here your separate personal property will go 1/3 to your spouse and 2/3 to your children. Your separate real property will be left to your children equally subject to a 1/3 life estate in the property held by your spouse. This means that your spouse retains an interest in the property for the duration of their life. Your spouse will also receive 100% of the community property.
- Note – This answer changes if the children are not of the same marriage. In that case, your spouse will retain their 50% of the community property and your kids will split your half equally.
Married with no children.
You probably think everything would get left to your spouse….nope. Your spouse would receive all of your separate personal property and all of your community property. But your separate real property? Half goes to your spouse, a quarter goes to your mom, and a quarter goes to your dad. If one (or both) of your parents are not living, their share goes down to your siblings and their heirs. Don’t have any siblings? Then the share would travel up to your grandparents and back down to your aunts and uncles and their descendants.
Unmarried with no children.
Here 50% goes to your dad and 50% goes to your mom. If one or both of your parents are not living, it travels down to your siblings and descendants. If you do not have any siblings then the share will travel up to grandparents and down to your aunts and uncles. Was your mom or dad an only child? Are your grandparents also deceased? Then the share can travel all the way up to your great grandparents and back down the family tree.
Intestacy laws in Texas can get messy fast. There are cases with hundreds of beneficiaries. Can your estate be administered without a will? YES, absolutely! Should it? No. Your family will be glad you wrote a will. The Estates Code does its best to ensure your family shares in your Estate, but I bet you would prefer your Estate didn’t make its way to your 3rd cousin twice removed.