Dying Without a Will in Texas

(Last Updated On: March 31, 2014)

By Miriam Nicole Huffman, EM Legal Ease contributor

In “6 Estate Planning Documents Everyone Needs,” a written will was at the top of the list for basic estate planning documents. This article will provide more information on what can happen when a Texas resident dies without a will or other documents in place to protect his family. The three examples given are based upon Texas Intestacy Laws. First, there are some key definitions to consider for this topic.

Important Definitions

Intestate

A person who dies without a valid, written will.

Real Property

a.) land:

b.) improvements on land such as buildings, structures, and fences,

c.) standing timber

d.) minerals

e.) a mine or a quarry

Personal Property

All property that is not classified as real property is considered personal property.

Separate Property

Personal and/or real property acquired prior to marriage.

Community Property

Personal and/or real property acquired during marriage is assumed to be community property, unless there is a written agreement stating otherwise. Please note that community property includes wages, investment accounts, and retirement accounts.

Dying Intestate Scenarios

Scenario A

Husband and Wife. Before or during the marriage, husband has a child with someone other than his wife. The wife has no children. Husband dies without a will. What happens?

Community Property. The wife keeps her half of the community property, and the husband’s child gets the husband’s half of the community property.

What does this mean? Say for instance this couple purchased a house while they were married. In Texas, even if the house is not in both spouses names, if it was purchased during marriage, it is community property- unless there is an agreement between the spouses for a different categorization. If the husband dies without a will, although the wife has a life estate in the property, she actually shares ownership of the house with the child.  If, therefore,  the wife wants to sell the house, she will need the child’s, or his guardian’s, signature on any paperwork. This could place the wife in the position of having to do business with the ex-wife or ex-lover of the deceased spouse. Furthermore, the wife must split 1/2 the proceeds with the child. Another thing that could happen is that the child does not want his interest in the home, and he can force the wife to buy him out.

Separate Property. If it is personal property, the wife receives a 1/3 interest and the child receives a 2/3’s interest in the property. If it is real property, the wife receives a 1/3 life estate interest and the child receives a 2/3’s outright interest in the property. Upon the wife’s death, all interest in the property goes to the child or the child’s descendants. The wife’s interest ends upon her death.

Scenario B

Husband, Wife, and Child. The couple has a child that is both Husband’s and Wife’s. Wife or Husband die without a will. What are the results?

Community Property. The wife keeps all of the property.

Separate Property. If it is personal property, the wife receives a 1/3 interest and the child receives a 2/3’s interest in the property. If it is real property, the wife receives a 1/3 life estate interest and the child receives a 2/3’s outright interest in the property. Upon the wife’s death, all interest in the property goes to the child or the child’s descendants. The wife’s interest ends upon her death.

Scenario C

Husband, Wife, Parents, and Siblings. Wife has child who is not her husband’s. Husband and Wife were living in Wife’s property that she had prior to the marriage. The Husband is not on the deed and there has been no marital agreement to change the categorization of the property from “separate” to “community.” The child dies and then Wife dies. Wife leaves behind parents and 2 siblings. What happens to the home that was Wife’s separate, real property?

The Husband receives a life estate, plus an outright interest in 1/2 the property. The other 1/2 passes to the parents and the siblings. If Wife wants Husband to completely own the house after her death, she either needs to: a) draw up a new deed with his name on it or b) pass the property to Husband in a will.

These are just a few of the most common scenarios that may happen when a Texas resident dies without a will. The moral of the story is if you want to protect your family, and have your property pass in a manner that is different than the Texas intestacy laws, you need to have a will. For assistance with will preparation, you may contact a local attorney or research “do-it-yourself” products on the Internet.

Contributed by Miriam Nicole Huffman of MiriamNicoleHuffman.com.

photo credit: SalFalko via photopin cc

Dying Without a Will in Texas