TERMS USED AND THEIR DEFINITIONS
In order to fully understand how property passes at death in Texas requires at least a basic understanding of a few legal terms. It must further be noted that the definitions offered here are very limited in their scope and may require more extensive research into marital property and other areas of Texas law, but for the limited purpose of this discussion are offered as follows:
Community Property vs. Separate Property - There are two separate and distinct statutes referenced for distribution of intestate property in Texas. Section 45 of the Texas Probate Code provides for distribution of community property, and Section 38 of the Texas Probate Code provides for distribution of separate property. Normally, the nature of property (i.e., separate or community) is established at the time of acquisition. For example, if Spouse #1 owns a rent house at the time that Spouse #1 and Spouse #2 marry, that rent house is the separate property of Spouse #1. The rent received on the rent house during the marriage is community property. Each relationship was established at the time of acquisition.
Escheat - When a person dies leaving no will and no heirs, such property escheats to the state of Texas under conditions specified by statute. It should be noted that both the law and the courts try to avoid escheat situations and will always attempt to find an heir.
Executor - A person appointed by a testator to carry out the directions and requests in his will and to dispose of the property in testator's estate pursuant to the testator's wishes as expressed in his will. See attached article: "Duties of an Executor"
Executrix - Feminine version of Executor.
Holographic Will - A will that is made totally in the handwriting of the testator. It requires no subscribing witness. Although legal and enforceable in Texas, it can be a source of special problems at the time of probate. Holographic wills are never recommended. See attached article: "Types of Wills"
Intestate Succession - May be defined as the laws which govern how property passes when a person dies without a will or with a will that makes only a partial distribution of his/her property. See "If no Will"
Life Estate - An estate which has a duration limited to the life of the party holding it (general definition only).
Non-Testamentary Transfers - Includes property that passes to a beneficiary through what would normally be a contractual arrangement. A non-exclusive list of examples includes IRA accounts, life insurance policies with beneficiaries other than the estate, P.O.D. (payable on death) accounts and certain types of trust accounts.
Personal Property - In a broad and general sense, everything that is the subject of ownership, not coming under denomination of real estate.
Real Property - Land and generally whatever is erected or growing upon or affixed to land.
Revocation by Operation of Law - If a testator, after making a will is divorced, all provisions in the Will in favor of the divorced spouse are void.
Revocation by Physical Act - A testator may revoke a will by a physical act, such as tearing it into pieces or otherwise destroying it. This may also be done by another person in testator's presence if testator causes this other person to do the physical act.
Revocation by Subsequent Will - A Will in writing may be revoked by a subsequent declaration in writing, but in order to be effective, it must be executed with like formalities to the revoked or revised document.
Spendthrift Trust - A trust set up to protect a beneficiary from spending all of the moneys that are to be given to him at one time. This can also be used to keep creditors from attaching trust funds. See attached article "Spendthrift Beneficiaries"
Testator - One who has made a will or testament; one who dies leaving a will.
Testatrix - A woman who makes a will; a woman who dies leaving a will.
Trust - A right of property, real or personal, held for the benefit of another. See attached article "Trust"
Trustee - One in whom an estate, interest or power is vested under an express or implied agreement to administer it or exercise it for the benefit or use of another. See attached article "Trusts"