INTESTATE SUCCESSION

January 2008

By:  James M. Bright

Attorney at Law

 The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            Texas laws of intestate succession are just another way of stating that if you die without a will in Texas, the law will provide a formula for dividing your property.  Although these laws do assume the duty of identifying your heirs by relationship, they do not complete the task of defining which property passes to which person or to take care of any administrative duties.  Intestate succession will still require a legal proceeding in a probate court.

            How will the law attempt to divide my property if I die without a will in Texas?

            In order to answer this question, we must first determine what portion of the deceased’s property is separate and what part is community property.  If the deceased was not married, the property is separate and will be governed by Section 38 of the Texas Probate Code.  In addition, as a general rule, other separate property will include (1) gifts/inheritances; (2) property acquired in another state during marriage which is not community property under the laws of that state; (3) all property owned prior to marriage.

SEPARATE PROPERTY

            Possibility One – Both a spouse and a child or children survive the deceased:

            As to personal property, the spouse gets one-third and the remaining two-thirds go to the children.

            As to real property, the land goes to the children equally, subject to a life estate in one-third of the land by the surviving spouse.

            Possibility Two – Deceased is survived by spouse, but no children:

            All personal property to spouse.

            As to real property, the surviving spouse gets one-half; the deceased’s father gets one-fourth; and the deceased’s mother gets one-fourth.

            If one or more of the parents predeceases the decedent, then the portion that would have gone to that parent passes to the deceased’s brothers and sisters and their descendants.  If one parent survives, but no brothers or sisters survive, then one-half of the land will go to the surviving parent.  It is only if there are no surviving brothers, sisters or parents that the spouse inherits all of the land.

            Possibility Three – If the deceased does not have a surviving spouse, but does have surviving children, then both the personal and real property are divided equally among the children.

            Possibility Four – If the deceased has no surviving spouse and no surviving children:

            If both parents are living, then the estate goes one-half of everything to each surviving parent.

            If only one parent survives, then one-half of the estate will go to that parent, and the other one-half will be divided equally among siblings.  If there are no siblings, then the surviving parent gets everything.  If no parent survives, but there are siblings, the estate is divided equally among the surviving siblings.

            If no parent and no siblings survive, the law will still attempt to avoid escheat (i.e., reversion of property to the state), but it is too complex to cover in this writing.

COMMUNITY PROPERTY 

            If the property is community property (i.e., (1) that which is not a gift or inheritance; (2) was not acquired in another state which is not a community property state; (3) was not owned prior to marriage), it will pass in accordance with Section 45 of the Texas Probate Code.

            Possibility One – If decedent is survived by a spouse and is not survived by children or grandchildren, all community property passes to the surviving spouse.

            Possibility Two – Decedent is survived by a spouse and children or grandchildren where all such children or grandchildren are also the children or grandchildren of the surviving spouse, all community property passes to the surviving spouse.

            Possibility Three – Decedent is survived by a spouse and children or grandchildren, but the children or grandchildren are not also the children or grandchildren of the surviving spouse, then spouse retains one-half of the deceased spouse’s community estate and the other one-half goes to the children/grandchildren of the deceased.

            If I decide that the laws of intestate succession as described above pass my property in very much the same way that I would pass it in a will, is it advisable to have a will prepared anyway?

            Yes, although the law describes “how” the property should pass if you have no will, it does not perform the task of passing title to your property.

            Is it less expensive to allow the laws of intestate succession to divide my property than to probate a will?

            The answer to this question is an emphatic and resounding NO.  It is far more difficult and is more expensive to settle property issues when no valid will is found.  I would even be so bold as to say that in my own practice and experience, the increased cost to the family to settle your estate is many times greater than the cost of obtaining a valid will would have been.  In fact, passing without a will and placing your family in the unenviable position of sorting out your estate will probably cost 3-4 times more than a probate even if all beneficiaries are cooperative with one another and no dependent administration is required.  If any of the heirs under intestate succession are not in agreement with other heirs and a dependent administration is required, then the cost of settling an estate can increase at an alarming rate.  The simple solution to this problem is to invest the rather moderate sum required to have a proper will drafted by an attorney of your choosing.

            Laws of intestate succession as described above do an admirable job of attempting to be fair and to divide your property equitably.

            The fault in depending upon these laws is (1) they do not consider your preferences; (2) they do not provide for property to be set aside for special needs of particular beneficiaries; they do not allow you to decide that a certain portion of your property should be set aside for education of a grandchild, special care of a child or spouse or any other reason that may be close to your heart; (4) they do not perform the tasks required to settle your property issues without court intervention in ways that are more time consuming or costly than probate of a will.

            Without question, the way to save your family both time and money at the time of your death and at the same time assure that your own wishes are respected is to have a will drafted by an attorney of your choice.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street