We have all heard of the importance of having some kind of estate plan in place. Whether it be just a simple Will or some extravagantly detailed Trust, something should be done to prepare for what is sure to happen. With this being said, it is estimated that 60-75% of Americans still die Intestate (without a Will). Perhaps they meant to and never got around to it? Perhaps they thought they had plenty of time, or worse, if they had prepared a Will, they would lose time? Maybe they had assumed that they didn’t have enough assets to bother? Whatever the reason, and regardless of the size of the estate, each state has developed their own “default” rules in regards to what happens to one’s property once they pass.
So what happens in Texas when we die without a Will? Here is just a glance at what happens to your property, regardless of what you may have wanted:
If you are not married, have no children, and both of your parents are alive at the time of your death, your property would be divided equally between your parents, half to mom, half to dad. If only one of your parents is alive at the time of your death, your entire estate will pass to your surviving parent if you have no siblings.
If you are not married, have no children, you do have siblings and only parent is alive at the time of your death, half of your property would go to your surviving parent and the other half would be divided equally between your siblings, or their descendants. For example, half to mom, ¼ to brother, ¼ to sister. (Should one of your siblings predecease their child, your niece or nephew would inherit their parent’s portion)
If you are not married, have no children, no siblings and neither of your parents are alive at the time of your death, half of your property would go to your mother’s family and half would go to your father’s family. If there is only one surviving side, that side would inherit all of your property.
If you are not married but have children, then your property would be equally divided between your children.
If you have no descendants anywhere, your property would go to the State of Texas. This being said, if you have other plans for your estate, such as donating to a favorite charity or organization, creating a valid Will is a must.
If you are married, your property is differentiated into two categories; Community and Separate. If you have been separated from your spouse but are not legally divorced, these rules still apply. Texas does not recognize separation. You must have a valid Will to make your wishes known.
COMMUNITY PROPERTY (Property acquired during the marriage)
If you do not have children, or if you do have children with your spouse, all of your community property would pass to your surviving spouse. The logic here is that once your spouse passes as well, your children will then inherit from the both of you at that time.
If you have children that are not shared between you and your spouse, half of your property will go to your surviving spouse and the other half would be divided equally between your children, or your children’s descendants. For example, you have two children from a previous relationship, your spouse gets half and your two children split the remaining half ¼, and ¼. If one child has predeceased your grandchild, that grandchild will get what your child would have inherited from you. If you have a child that you have not spoken to in years and do not wish that they inherit from you, you must expressly name and disqualify that child in your Will to avoid potential challenges.
SEPARATE PROPERTY (Property you owned before your marriage)
If you do not have children, half of your separate property would go to your surviving spouse and half would be equally divided between your parents, half to spouse, half to mom and dad. If you are survived by only one parent but have siblings, or both of your parent’s are deceased, that share (mom & dad’s share) would be divided between your siblings, or their descendants. Either way, if you have surviving parents or siblings, your spouse will only get half of your separate property. Only if you do not have children, brothers or sisters, and both of your parents are deceased, will all of your separate property pass to your spouse.
If you do have children, 1/3 of your property plus a life estate (the right to occupy your property until death) would go to your surviving spouse. The remainder of your separate property would be divided equally between your children.
This is the “default” Estate Plan Texas has created for you. If you have other ideas for your estate it is important that you make that clear. Having the freedom to do what we wish with property is one of the many great aspects of our country but you must make your wishes known. Creating an Estate Plan with a qualified and knowledgeable Estate Planning Attorney will ensure that your property goes to who you want, when you want, and in the way you want.