Compared to other states, Texas implements several barriers that make handing a decedent's intestate estate expensive and time-consuming. Fortunately, shortcuts do exist for those who know where to look.
Jump ahead to these sections:
- Texas’s Intestacy Laws Explained
- How Does Probate Work in Texas If There Is No Will?
- Are There Alternatives to Probate When There Is No Will?
- Who Typically Inherits Assets in Texas If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Texas
When loved ones have to go through the court for formal probate, the process can be expensive due to the need for an attorney and an additional court-appointed attorney to find heirs. Heirs of smaller estates can often transfer property without going through the complete probate process.
Texas’s Intestacy Laws Explained
Intestacy describes the state of dying without a will. In Texas, the intestacy laws provide the rules for dealing with the assets and debts the decedent left behind.
Anytime that someone dies, there follows a period where someone has to handle the mechanics of dealing with the estate. That includes securing property, transferring assets to the new owner, and paying bills. The probate court provides the authority to do those things by issuing an order appointing a personal representative.
When the decedent dies without a will, state intestacy laws step in to provide the direction that typically comes from wills, including who should be appointed personal representative and in what order those left behind inherit property and belongings.
Who inherits when there is no will?
The laws of intestacy look both up and down the family tree to find heirs.
Texas is a community property state. It distinguishes between separate property and community property for the ratios that the spouse and children can inherit depending on the family structure. Under the probate code, the spouse and descendants are the first to inherit.
After that, the intestacy laws look up the family tree for the decedent’s parents. If the parents predeceased the decedent, then siblings and the issue of the decedents can inherit. If nobody from those generations exists, then the intestate estate executor turns to the grandparents’ generation to look for heirs.
How Does Probate Work in Texas If There Is No Will?
Most states are moving to models that make courts more user-friendly to those without attorneys. Unfortunately, non-attorneys can find it very challenging, if not impossible, to proceed without an attorney in Texas.
Texas courts interpret non-attorneys representing an estate as the unauthorized practice of law. As a result, they require that anyone applying to be a personal representative have an attorney and may not act on filed documents until an attorney of record enters the case.
A probate case gets started when someone files an application for probate in the correct probate court. At that point, the county clerk posts a notice two weeks prior to the hearing to give anyone interested in the case notice of the proceeding.
The Texas court also identifies heirs by appointing an attorney called the attorney ad litem to research and determine the heirs. The attorney ad litem fees come out of the estate, creating a significant incentive to make a will in Texas.
Independent and dependent estate administration
The court decides whether an estate should be administered either dependently or independently when it appoints a personal representative.
Under independent administration, the personal representative remains responsible to the court but has little contact with the court after the appointment. The personal representative files an inventory but does not report every transaction or sale of property. The court remains where creditors or heirs can go if there is a conflict.
In high-conflict estates, the court can decide to implement dependent administration. In that scenario, the personal representative has to post a bond, submit an inventory, and ask the court for permission to sell the property or distribute assets.
Are There Alternatives to Probate When There Is No Will?
Formal probate in Texas can be time-consuming and expensive when attorneys are involved. Fortunately, a couple of options exist for lower-value estates with clear, uncontested heirship.
Small estate and heirship affidavits
If someone dies without a will, the heirs can use a small estate affidavit in some situations. The small estate affidavit allows the heirs to collect and distribute assets upon presenting the affidavit rather than going through the probate court process.
To use the affidavit, you must wait at least 30 days after the decedent’s death, and there can be no pending appointment for the personal representative. Most importantly, the estate’s assets have to be worth no more than $75,000, excluding the decedent’s homestead and exempt property.
To proceed by affidavit, you can file it with the clerk of the court that has jurisdiction over the estate, and then the judicial officer approves the affidavit.
The small estate affidavit helps heirs transfer personal property like bank accounts, safe deposit boxes, and even the decedent’s homestead, which Texas law defines as an individual’s place of residence. If the decedent had real property beyond the homestead, an affidavit of heirship might be helpful.
Heirs can prepare affidavits of heirship to identify heirs of real property. The affidavit alone does not transfer property – instead, it creates a clear chain of title in the property records.
Who Typically Inherits Assets in Texas If There Isn’t a Will?
Texas’s status as a community property state greatly impacts inheritance when there is no will.
In community property states, assets acquired during the marriage are considered to be owned equally by the spouses. Property obtained prior to marriage or through inheritance and gift is usually separate property or property not shared between spouses.
In considering who inherits when a decedent dies without a will, the estate can be divided into two separate sections – community property and separate property. Keep in mind that some people may have no separate property, especially those married for a long time or married relatively young.
Frequently Asked Questions: Dying Without a Will in Texas
The application of the laws of intestacy to a specific family can be challenging, but here are a few common scenarios that next-of-kin may encounter.
What happens to a house when an owner dies without a will?
When the homeowner dies without a will, the home remains in the decedent’s name until an heir or someone else takes steps to transfer the property. If the house was only in the decedent’s name, it can only be transferred after heirs complete formal probate, a small estate affidavit, or an affidavit of heirship.
Before starting probate, always do a property search to learn how the property is titled—property titled with right-of-survivorship transfers outside of probate, as does property with a transfer-on-death or beneficiary deed.
Does a spouse automatically inherit everything in Texas?
A spouse’s inheritance hinges on how the decedent owned the property and whether the decedent had any children or surviving parents.
If the decedent had no children or surviving parents, the surviving spouse inherits all separate and community property.
If the decedent had children who are also the surviving spouse’s children, the spouse inherits all of the community property, ⅓ of the separate property, and the right to use the real estate for their life.
The surviving spouse inherits much less if the decedent had children with someone other than the surviving spouse. In that scenario, the spouse inherits ½ of the community property, ⅓ of any separate property, and the right to use the real estate for life.
If the decedent is survived by a spouse and parents but no children, then the spouse inherits the community property, separate personal property, and ½ of the separate real estate.
What happens when a parent dies without a will?
After a surviving spouse, children have priority for inheritance. If the decedent left no surviving spouse, then the entirety of the estate passes to the children. Grandchildren can inherit in place of their deceased parents.
What’s a minor child entitled to when their parent dies without a will?
Minor children can inherit money and property from a parent’s estate, but the court usually appoints a guardian to oversee the property until the minor reaches the age of majority.
If the child’s other parent is the decedent’s surviving spouse, the child can inherit ⅔ of any separate property. If the surviving spouse is not the child’s parent, the children can inherit ½ of community property and ⅔ of separate property.
If the decedent had no surviving spouse, then the children inherit everything.
Texas family law states that child support does not end with the death of the paying parent. The minor’s custodial parent or legal guardian can petition the court to continue child support payments from the estate if there are assets that would otherwise go to other heirs.
Preserve Your Assets Through Estate Planning
The challenges and costs posed by probate in Texas make it a state where residents do well to make a will and engage in estate planning to preserve state assets and make the process easier for those left behind.
Estate planning can be as simple as adding payable-on-death beneficiaries to bank accounts and filing transfer-on-death deeds for real estate.
Sources:
- “Pro Se Policy” Dallas County. Dallascounty.org
- “Probate a Will.” County of Bexar Probate Courts. Bexar.org
- “Estates Code.” Texas Constitution and Statutes. Statutes.capitol.texas.gov