Read Part One

What happens if someone dies intestate in Texas?

Intestate simply means, without a will. When a person dies without a will property is distributed according to the Texas Estates Code rules, and those rules are complicated.

Did the person die married? Are there children? Did s/he own community property? Was s/he in the process of separation or divorce? Are the deceased’s parents still alive? Who are all the living heirs who may be entitled to take from the deceased?

Decedent – a dead person
Married – Texas acknowledges common law marriage but you should seek counsel on whether the marriage at issue qualifies.
Children – Adopted and by birth.
Heir – a person who receives an interest in an ancestors assets through intestate (without a will) succession.
Kin – related by blood or (big lawyer word of the day) consanguinity (of the same bloodline.)

You’re Married? What is Community Property? What Does That Mean If You are Deceased?

Community Property is simply, everything acquired by spouses DURING marriage. What was owned prior to marriage is separate property unless co-mingled or otherwise designated. A personal injury settlement, a gift, or anything received via inheritance is also separate property, again, unless it is commingled or designated by another instrument as community property.

Here is the complicated part:

Scenario A: You die, but your spouse survives, you have no children, none from any prior marriages. Living spouse takes your ½ interest, owns the whole community.

Scenario B: You die, but your spouse survives, you have children from only the current marriage. Living spouse takes your ½ interest, owns all of the community.

Scenario C: You die, you have two children from a prior marriage, and two from current marriage. Spouse receives only ¼ of the total community property and the children from the prior marriage receive ½. In other words, your ½ gets divided between children from prior marriage and current spouse. So the surviving spouse has ¾ of the community.

And it only gets more complicated from there…

You die, unmarried. Now What? Look to Texas Estate Code Section 201.001. Who are the heirs who would receive any assets you leave behind?

Children and Grandchildren (if none)
then
Parents (if none)
then
Siblings (if none)
then
Grandparents (if none) the MOIETIES-great grandparents or parental parents. ½ to the mom’s parents and ½ to the dad’s parents.
If no relatives, then all property ESCHEAT’S (results back or reverts back) to the State of Texas.

These are the simplest examples; with a little imagination it’s easy to see the difficulties of determining what happens when a person dies without planning for how to direct the care of their assets. Our best advice to you is to plan ahead so there is no doubt. Help us help you plan ahead by filling out this form, remember this is all on a sliding scale..

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