Thursday, December 18, 2014

Texas Descent and Distribution (The legal effect of not having a will)

The Texas Legislature has laws on how property will be divided if you die without a will in the State of Texas.

The State of Texas will not "take" your property - it will be divided by the heirs of the deceased person after a judge has determined who his heirs are legally.

Unfortunately, often the property is not divided the way the heirs want --

For example, if a man own separate property real estate then his widow gets to live in the house for the rest of her life (but she must maintain it at her own cost) and the children cannot take possession of the property until she dies or leaves the home.

If a woman dies and leave community property (not real estate) but clothes, money, jewelry, investments, etc. then the spouse gets 100% and her children get nothing. The daughters would not be entitled to any jewelry or her personal belongings.

It really gets complicated when there are children born outside of the current marriage, say a first marriage or a child born without the benefit of the parents being married, then the Texas Legislature has protected all children and the widow(er) only receives their 50% interest in the community estate.

Additionally, without a will then probate in Texas is slow and expensive.  The heirs are under the judge's control since the deceased did not express his desires in a will and he/she did not appoint an independent executor (executrix) to handle the affairs of the deceased's estate. The heirs need to probate the estate in order to have a clean title to sell any real estate.

If you don't probate the estate then the bank will eventually turn it over to the State of Texas unclaimed property division and it is very very difficult to get the money released.  You can look on the internet under Texas unclaimed property to learn what you need to try to get money you think belongs to you.

Here is what the Texas legislature decided was fair when a person dies without a will:

Married person with children

a.  Separate property real estate - surviving spouse's life estate in 1/3
and all children take equally subject to the spouse's life estate
all other property - 1/3 to spouse and 2/3 to children to be shared equally

c. community property -
real estate - all to surviving spouse if all children are also children of this marriage
and all other property - all to surviving spouse

d. If there are children from outside the existing marriage on the date of death of the deceased person then:
real estate - 1/2 to spouse and 1/2 to children
all other property - 1/2 to spouse and 1/2 to children

If a person is single or widowed with no children --
If the person died with no children then the deceased's mom and dad split the estate 50/50.
If the person died with parents and siblings then 1/2 to mom or dad and 1/2 to siblings.

Widow(er) with children
real estate and all other property - children share equally or to the descendants of the children.

Married person with no children

Separate property real estate - if both parents are alive - 1/4 to mom, 1/4 to dad and 1/2 to spouse.

Separate property - one parents survives - 1/4 to parent and 1/4 to siblings and 1/2 to spouse.

Separate property no siblings or their descents - 1/2 to parents and 1/2 to spouse

No surviving parents - 1/2 to siblings and 1//2 to spouse

No siblings (or their descendants) or parents - all to spouse

All other property - to spouse

Community Property - All real and personal property is taken by the surviving spouse

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