| Question: ? Is it true that the state gets | | | | are better explained in the following bullet points: |
| everything if I die without a Will?? | | | | 1. If both parents survive the decedent, then his |
| Concerned clients routinely ask this question | | | | estate passes to his father and mother, in equal |
| expressing their concern in keeping the State | | | | portions. |
| from taking their hard-earned estate upon their | | | | 2. If only one parent survives the deceased, then |
| deaths. Fortunately, the State does not take the | | | | his estate will be divided into two equal portions, |
| property of someone dying without a Will. | | | | one of which will pass to the surviving parent, and |
| Instead, Texas law dictates how the assets of | | | | the other passes to the siblings of the deceased. |
| someone dying without a Will are divided upon | | | | 3. However, if the decedent had no siblings, then |
| their death. | | | | all of the separate property would pass to the |
| If you die without a Will, you are said to have | | | | sole surviving parent. |
| died ?intestate.? When someone dies intestate, | | | | 4. Conversely, if neither parent is alive, but there |
| Texas law lays out how the estate will be | | | | are surviving siblings, then the whole estate |
| distributed in the Texas Probate Code. Under | | | | passes to the siblings of the deceased. |
| those provisions, the law draws a distinction | | | | 5. Finally, if there is no parent nor sibling alive at |
| between ?separate? property and ?community? | | | | the time of death of the decedent, the |
| property. The Probate Code defines separate | | | | inheritance is divided into two equal parts. One |
| property as any property owned by the | | | | part is passed to the paternal kindred, and the |
| deceased prior to married and any property given | | | | other is passed to the maternal kindred, in the |
| to the deceased during their marriage or acquired | | | | following course: |
| by them as an inheritance from someone else. On | | | | ? to the grandfather and grandmother in equal |
| the other hand, the Probate Code defines | | | | portions if both are living. |
| community property as all property acquired or | | | | ? If only one grandparent is living then the estate |
| accumulated during the marriage, other than | | | | is split into two equal parts and one part goes to |
| property acquired by gift or inheritance, and | | | | the surviving grandparent and the other goes to |
| Texas law requires different divisions of separate | | | | the descendant or descendants of such deceased |
| property than community property. These | | | | grandparent. |
| divisions can be somewhat complicated, but | | | | ? If there is no surviving grandparent, then the |
| understanding their divisions makes intestate | | | | whole of the estate goes to their descendants, |
| estates much easier. | | | | and so on without end, passing in like manner to |
| Four basic scenarios illustrate the division of | | | | the nearest lineal ancestors and their descendants, |
| separate property upon someone?s death. In the | | | | but never to the state. |
| first and most common scenario, a person dies | | | | Like the provisions related to the division of |
| with a spouse and children. In such case, the | | | | separate property, the Probate Code also lays |
| surviving spouse takes one-third of the personal | | | | out the division of the community property of |
| property, (non land assets) and the remaining | | | | someone who dies intestate. Fortunately, the |
| two-thirds of the personal property is divided | | | | distribution scheme for community property is |
| equally among the child or children of the | | | | easier because community property, by definition, |
| deceased. The surviving spouse of the decedent | | | | only exists if a spouse survives the decedent. |
| is also entitled to possession for life, of one-third | | | | Only three scenarios exist when someone dies |
| of the land of the deceased, with that one-third | | | | intestate leaving community property: 1) no |
| going to the children or descendants upon that | | | | children or descendants, 2) children who are all |
| surviving spouses death. | | | | children of the decedent and the surviving spouse, |
| In the second common scenario, someone dies | | | | and 3) children or descendants who are not all |
| without a spouse but is survived by each of the | | | | descendants of the surviving spouse. |
| children born to him or her during life. In that | | | | 1. If the deceased had no children, then the entire |
| scenario, all of the property is divided equally | | | | community estate passes to the surviving spouse. |
| between the children. This scenario results in the | | | | 2. If the deceased had children, and all of such |
| easiest division of the decedent?s property. | | | | children were also the children of the surviving |
| In the third scenario, someone dies leaving a | | | | spouse, then the entire community estate passes |
| surviving spouse but does not leave any children | | | | to the surviving spouse. |
| or descendants. There, the spouse is entitled to all | | | | 3. And finally, if the deceased had children or |
| of the personal property and to one-half of the | | | | descendants other than those of the surviving |
| land of the Estate. The other half of the land | | | | spouse, then the surviving spouse retains her |
| would go to the father and mother of the | | | | one-half (Ω) share of the community |
| deceased in equal portions. If only one parent | | | | property, and the decedent?s one-half |
| survived the deceased, then that share of the | | | | (Ω) share of the community property |
| land would be divided into two equal portions, one | | | | is divided equally between the children or |
| passing to the surviving parent, and the other | | | | descendants of the deceased. |
| passing to the siblings of the deceased. If there | | | | So, as you can see, Texas law makes it very |
| were no siblings, the entire share would pass to | | | | clear that the court will find an heir and that heir |
| the parent. If no parent survived the deceased, | | | | will inherit your estate and your estate will not be |
| and there were siblings, the entire share would | | | | turned over to the state for any reason. |
| pass to the siblings. | | | | However, to ensure that your estate is divided |
| The final scenario is where a person dies without | | | | the way you see fit, and to avoid a costly |
| a spouse and without children. This is the most | | | | administration, it is always the best bet to ensure |
| complex scenario with five possible divisions, which | | | | that you have a valid Texas Will. |