Upon death, title to the decedent's property passes immediately to the heirs-at-law if the decedent died without a will. However, there must be an actual transfer of ownership of the property by having a court determine who are the decedent's heirs. The purpose of court involvement is to protect the rights of the family, those entitled to receive property, and the creditors of the decedent's estate.
Therefore, although title to property passes immediately at death, the assets of the estate are subject to the control of the administrator of the estate for the purpose of settling the debts of and claims against the estate. All debts and claims must be paid first. If the decedent died without a will or if the will is declared invalid, the estate is distributed to the decedent's heirs as determined under Texas law. The decedent's heirs may not be the persons to whom the decedent wished for his or her property to pass.
In Texas, property is characterized as separate or community.
Separate property is that which is owned before marriage or acquired during marriage by gift or inheritance. Damages awarded during marriage from a personal injury lawsuit, except damages representing the loss of earning capacity, also are separate property.
Community property is all property, other than separate property, which is acquired by either spouse during marriage.
Thus, there can be separate real property, separate personal property, community real property and community personal property. When a person dies without a will, the law determines who are the heirs, and assets are disposed of according to whether they are community or separate property.
Distribution of Community Property:
Community property, whether real or personal, is distributed as follows:
If the decedent is survived by:
Spouse but no children or descendants:
All community property passes to the surviving spouse
Both Spouse and Children (or Descendants of Deceased Children):
If all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse:
All of the community property passes to the surviving spouse.
If any surviving child or descendant of the deceased spouse is not also a child or descendant of the surviving spouse:
the deceased spouse's one-half of the community property passes to his or her children (and the descendants of any deceased child),
and the surviving spouse retains the one-half of the community property he or she owned prior to the other spouse's death; however, the surviving spouse has the right under Texas law to use and occupy the homestead during his or her life and may have the right to use or own certain items of personal property that are exempt from creditors' claims.
No spouse / no children or descendants:
All property is separate property, and is distributed completely as shown below for separate property.
Distribution of Separate Property
The distribution of separate property of a person who dies without a will depends on whether it is real or personal property. Separate property is distributed in this manner:
If the decedent is survived by a spouse and children (or descendants of deceased children), then subject to the surviving spouse's rights with respect to the homestead and exempt personal property:
Separate personal property passes one-third to the spouse and two-thirds to the children (and the descendants of deceased children).
Separate real property passes to the children (and the descendants of deceased children) subject to a life estate in one-third of the property in favor of the surviving spouse. This means that the surviving spouse is entitled to use one-third of the real property during his or her lifetime, and upon his or her death, the children (or descendants) will have full title to the separate real property of the decedent.
If the decedent is survived by a spouse but not by any children or descendants, then subject to the surviving spouse's rights with respect to the homestead and exempt personal property:
All separate personal property passes to the spouse.
Separate real property passes one-half to the spouse and one-half to the decedent's parents or collateral relatives, such as brothers and sisters or their descendants. If no parents, brothers, sisters, or their descendants survive, then all separate real property passes to the surviving spouse.
If only children or their descendants survive, all separate personal and real property passes to the children or their descendants.
If both parents survive, but not the spouse or children or children's descendants, all separate personal and real property passes one-half to each parent.
If only one parent and brothers or sisters survive, separate personal and real property passes one-half to the surviving parent and the remaining one-half is divided equally among the brothers and sisters or their descendants. However, if no brothers or sisters or their descendants survive, then all separate property passes to the surviving parent.
If no spouse, children or children's descendants, or parents of the decedent survive, all separate property is divided equally among the decedent's brothers and sisters or their descendants.
If none of the above relatives survive, then all separate property passes generally to the decedent's grandparents. If no grandparents survive, the law provides for distribution of separate property to more distant relatives.
In Texas, no matter how remotely related one is to a person who dies without a will, potentially he or she is an heir-at-law. Notice that the decedent's property passes to the State of Texas only if none of his or her heirs, including very remote heirs (such as uncles, aunts, or cousins), are living. Indeed, the State rarely benefits from the estate of an intestate decedent.
Examine the rules above to see how your community and separate property would be distributed if you died without a will. Would the persons you desire to receive your property actually receive it?
Possible Undesired Results:
Dying without a will risks that the property will not be inherited as the decedent wished.
Adopted Children
The inheritance rights of adopted children are protected when a parent dies without a will. Under the Texas Probate Code, an adopted child is treated the same as a natural born child. Therefore, the adopted child can inherit from his or her adopted parents and vice versa. The adopted child can also inherit from his or her natural parents, but the natural parents cannot inherit from the child if the child dies without a will. This is an important consideration today when often an adopted child seeks and discovers the identity of a natural parent and then establishes a relationship with that parent.
Illegitimate Children: An illegitimate (born out of wedlock) child's rights of inheritance:
Natural Mother - The child can inherit from his or her natural mother and vice versa when either dies without a will.
Natural Father - The child cannot inherit from the natural father or the father's family members who die without a will, unless one of certain specified events, including:
The father consents in writing to be named as the child's father on the child's birth certificate
Paternity is established in a paternity suit brought generally before the child's twentieth birthday.
The father legally adopts the child.
The father voluntarily signs a written notarized statement of paternity acknowledging that the child is his.
After the child's birth, the father marries the biological mother and either signs a written acknowledgment of paternity, consents to be named and is named as the child's father on the birth certificate, or is obligated under a written voluntary promise or by court order to support the child.
After the father's death, the probate court determines that the father was the child's biological father.
This means that even if a father maintains ties with his illegitimate child, that child will not inherit from him if he dies without a will, except under limited circumstances such as those discussed above.
Stepchildren
Ordinarily, stepchildren do not inherit from a stepparent who dies without a will since he or she is not considered to be legally related to that stepparent, even when the stepchild was raised by a natural parent and a stepparent.
A stepchild can inherit from a stepparent who dies without a will only if the stepparent adopted the stepchild or if the stepchild proves in court the existence of a written or oral agreement to adopt that was not executed. This is sometimes used when foster parents do not adopt a child even though they had an agreement with the natural parent(s) that they would adopt.
Children of the Half-Blood
Half-blood children share the same natural mother or father, but not the same two natural parents. A half-blood child inherits only half as much as a whole blood child. For example, if a decedent's only heirs are a half-blood brother or sister and a whole blood brother or sister, the half-blood heir takes one-third of the estate and the whole blood heir takes two-thirds.
Costs and Delays
Dying without a will can tie up assets for an undetermined period of time. A court proceeding often is required to determine who are the heirs.
An administrator, who may be responsible to the court for settling the estate, may have to be appointed. The administrator may be required to post a bond to insure that the duties are performed properly. The administrator's duties include locating the heirs, inventorying the assets, paying off debts of and claims against the estate, and distributing the property to the heirs.
Transfer of ownership of some of the assets by legal documents, such as deeds and certificates of title, may be necessary.
If the estate cannot be settled amicably, the court will resolve the disputes. Because of congested dockets, court proceedings often are slow. Legal fees and court costs may begin to mount. Depending on how difficult it is to divide the property and whether the heirs agree on the value assigned to it, court proceedings could be so lengthy and costly that the estate is depleted.
The bottom line is that dying without a will costs time and money and causes frustration for the family of the decedent.
