Intestacy: Dying Without A Will

“Intestacy” is the term used to describe the estate of someone who has died without a will. Such an individual is said to have died intestate. Even though it can be an unpleasant thought, everyone, regardless of age or health, should consider what will happen to their property when they die. Many people assume that, if they don’t have a will, their property will automatically be passed on to their next of kin, such as a spouse. However, this is not always the case. If a person dies with a valid will, they are said to have died testate. In this case, the estate will pass on to the individuals or entities stated in the will. In order for the will to be upheld, the named executor or someone interested in the decedent’s estate must have it admitted to probate by the appropriate probate court.

“Probate” is simply the term for the legal process by which a decedent estate is administered.

When a person dies intestate — without a valid will — Chapter 201 of the Texas Estates Code will control the distribution of his or her estate. The first consideration is whether the decedent left a surviving spouse. In order to be considered to have “survived,” a spouse must have outlived the decedent by at least 120 hours. If a person dies with a surviving spouse, the next consideration is whether a particular asset is community property or separate property.

“Community property” generally refers to all property a person acquires during marriage. “Separate property” is usually comprised of all property acquired before the marriage or by gift or inheritance.

A surviving spouse will take title to all of a decedent’s community property only if (1) the decedent died without children, or (2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse. If the decedent is survived by a child or a decedent who is not a child or descendant of the surviving spouse, then the surviving spouse will retain their one-half (1/2) community interest, and the decedent’s one-half (1/2) community interest will be divided among the decedent’s children and their descendants. In the case of separate property, proper distribution also depends on whether a particular asset is personal property of real property.

“Personal property” is movable property — that is, any property that can be owned except for land and other real estate. “Real property” includes land and anything attached to that land — property that cannot physically be moved.

If an asset is personal property and the decedent died leaving one or more children or a descendant of a child, the surviving spouse will take one-third (1/3) of the personal estate, with the remaining two-thirds (2/3) passing on to the decedent’s children or their descendants. If an asset is real property and the decedent dies leaving one or more children or their descendants, the surviving spouse is entitled to a one-third (1/3) life estate in the asset, with the remainder descending to the decedent’s children and their descendants. For separate property where the decedent does not leave a child or a descendant of a child, the surviving spouse is entitled to all of the decedent’s separate personal property and one-half (1/2) of the decedent’s separate real property. The remaining one-half (1/2) of the decedent’s separate real property passes to the decedent’s heirs at law as provided by the Texas Estates Code. If a person dies without a surviving spouse but is survived by children or descendants of children, then all of his or her property will be divided equally among the children, with any descendants stepping in to take their proportional share of a pre-deceased child’s interest. This is a very common scenario. The final scenario is when a person dies without a spouse and without children. This situation is the most complex and should be avoided at all costs by drafting a valid will prior to death. There are five possible divisions:

1. If both parents survive the decedent, then all of the decedent’s estate passes to his or her father and mother, in equal shares.
2. If only one parent has survived, the estate will be divided into two equal portions, one of which will pass to the surviving parent and the other of which will pass to the decedent’s siblings or descendants of siblings.
3. If one parent survives and the decedent does not leave any siblings or descendants or siblings, then the surviving parent will inherit the entire estate.
4. In the event that neither parent is alive, but the decedent leaves siblings, then the estate will be divided equally among the siblings and their descendants.
5. If the decedent dies without surviving parents and without surviving siblings or descendants of siblings, the estate will be divided into two equal shares, one to be distributed to the paternal kindred and the other to the maternal in the following course:
   • To the grandfather and grandmother in equal shares if both are living.
   • If only one grandparent is alive, the applicable share is then divided into two equal portions, one passing to the surviving grandparent, and the other share passing to the descendants of the deceased grandparent.
   • If neither grandparent survives, then the entire estate passes to their descendants, “and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.” § 201.001(g)(3).

As you can see, dying intestate in Texas can have a multitude of unintended consequences and complications. To ensure that your estate is divided according to your wishes, and to help your loved ones avoid lengthy and costly intestate administration, contact the experienced attorneys at The Farah Law Firm. We can help you draft your will and give you and your family peace of mind for the future.