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“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:
*Please note: Due to the costs involved and the favorability of land in Texas per contract and common law, we currently are not accepting residential tenant defense cases.