One of the most intimidating things that a person of a certain age must accomplish to protect themselves and their family at the time of their death is to create a will. Contrary to what many people think, drafting a will that establishes your wishes for how your property should be divided indent with up on your desk does not increase the likelihood of you passing away. What your will does is give clear instructions to a person named in the will 2 carries on your wishes and execute your intentions. The legal title for this person is the executor of your will. Many times an executor and a contingent executor will be named in the will if your executor isn’t able to fulfill their duties.
The main purpose of your will is to allow you to establish the terms of how you want your property dealt with at the time of your death. The alternative to your being able to make decisions about your property at the time of your passing would be to pass that responsibility onto the government. Intestate succession and distribution refer to how your property will be dealt with by probate courts in Houston or any other city in Texas. In today’s blog post from the Law Office of Bryan Fagan, I would like to discuss with you what happens if you were to die without a will.
Intestacy laws in Texas
as I alluded to a moment ago if you were to pass away without a last will then the laws of intestate succession would come into play. The probate process allows for those who pass away intestate to have their property distributed is divided according to the laws of intestate succession. These laws will determine how your property is dispersed once your probate estate is established. The key point to follow here is that during a probate case your beneficiaries would need to be able to show that how your property was distributed is fair.
All property that you own at the time of your death as well as your debts will go into the probate process. Any debts that you owe will be subtracted from any property that you own. Whatever the balance is after debts and bills are subtracted out of your property Holdings will be set aside for distribution amongst beneficiaries and heirs. This is typically a fairly lengthy process and your estate may be in probate for up to two years after you have passed away.
Let’s suppose that when you pass away you did not draft a will for yourself and therefore die intestate. The first thing that a probate court would look for would be whether or not you have ‘spouse or children or any other relatives. Primarily, your children, grandchildren, spouse, or parents are the primary persons that could stand to inherit from you if you were to pass away without a will. Let’s run through a hypothetical situation for you to see how your property may be divided where you 2 die without a will. I think it is helpful to illustrate points in this manner rather than to simply go through the Texas probate code line by line with you.
Suppose that you passed away without a will Anne owned a family home as well as single stocks. In that case, a probate court would look too if you were married and if you had any children. For the sake of our example let’s say you passed away while married and had three adult children. Based on this circumstance Community property laws would come into play meaning that your surviving spouse would inherit all of your Community property in addition to 1/3 of your separately owned property. Let’s walk through some of the basics of community versus separate property before we go any further.
With some exceptions, all property owned by you and your spouse at the time of your divorce or death is presumed to be Community property. The most significant exception to this rule would be any property owned by either of you before your marriage. Property owned before your marriage is classified as separate property. Likely, most of the property you own at the time of your death will be Community property especially if you have been married for a considerable length of time. It is also likely that there will be some property in your separate estate and some property in your spouse’s separate estate.
Since you passed away without a will the Texas probate code would hold that all of your community in the state would pass to your spouse. As far as your separate personal property is concerned then 1/3 of that property would go to your spouse. The remaining 2/3 of your separate estate will be divided amongst your children in equal shares. Regarding your family home, your spouse would gain a life estate in the home. This means that she would be able to use the marital home as long as she lives for whatever purpose she wishes.
On the other hand, let’s assume for the sake of argument that when he passed away without a will you did so without a spouse but with children. In a situation like this, the entire probate estate would be divided up between your children in equal shares. Laws regarding separate and Community property would not come into play because you have no spouse to take advantage of those Community property rights. All the property that you own will be lumped together and divided between your children equally once any debts or bills are taken out of consideration.
What if you pass away with no will and no close relatives?
One of the thornier and trickier issues that a court may have to deal with is regarding your passing away with no will, no spouse, and no close relatives. This would be a situation where you had no spouse, no children, no grandchildren, no parents, or any other close relatives. In that case, the court would need to put in some due diligence to locate any extended family most notably nieces or nephews. Grandparents, uncles, aunts, or even extended family beyond that would be considered. It is also a possibility that your entire probate estate could escheat to the State of Texas if no relatives or family could be located by the court.
If you were wondering, a probate court judge will typically not perform the due diligence required that we just discussed. Rather, you’re a probate court judge would be able to appoint someone called an attorney ad litem to research into your family lineage in an attempt to find persons who could inherit from you once you have passed away. The attorney at Litem will perform research using online and other resources to determine whether or not you have any family who stands to be able to inherit you upon the time of your death. The attorney aligns and will report back to adjudge its findings in the court will then determine who, if anyone, is in line to inherit from you where you should die with no will.
Another thing to keep in mind is that even if you were to pass away with no will and family that could be located by the court there would need to be positive cash flow within your probate estate for your heirs to inherit anything. For example, if you have debts that outweigh your property interests then your family members would not stand to inherit anything note that deaths are not something that can be inherited through the probate process. By choosing to come forward, your relatives will not become susceptible to inheriting your debts happen your passing.
What is the role a probate court plays upon your death without a will?
Now that we have a better understanding of the mechanics of intestate succession in Texas we should now talk about what a probate court does from the inside out when it comes to overseeing the process of dividing up your probate estate. The court will ultimately make legal recognition of your death and will administer your state. This simply means that the judge will manage and distribute all of your property once debts are considered. The property and assets will be transferred out of your name and into the name of any family member or spouse depending upon your particular circumstances.
When you pass away without a will your family members will need to determine if your estate needs to be probated. The two most important factors that your spouse or other relatives will have to use to determine whether or not we are a state needs to go before the court is the size of the estate and what types of property are in the estate. To answer these questions it is best to have experienced probate or a state planning attorney by your side. The attorneys with the law office of Brian Fagan stand ready to assist your family in the event of your passing.
The most practical question that your family should be asking is if they have to probate your estate to take care of the property that she left behind. For example, if you have assigned beneficiaries for retirement accounts or life insurance then these pieces of property would not be part of the probate estate and would not need to go before the court to be probated. Bank accounts that bear payable on death designations will be another example.
Assets at the time of your death are known as property that you owned which has a positive monetary value. The property doesn’t just mean real property such as your house, or rental property, or attractive land that is not yet been developed. For probate, we could see items like bank accounts, vehicles, items in your home, or cash as being part of the probate Estates assets.
Let’s suppose that you were caring for your children and a spouse as the sole provider of your home. If you were to have died an expectedly without a will then it is possible that all of your assets could be tied up in your probated state and in probating the estate those assets may be stuck in that process for up to two years after you passed away. What if your family needed money to pay bills, the mortgage, and to send your children to school? Is there anything a court can do in that situation or is your family out of luck?
The Texas Estates Code provides for a court to be able to hand down a family allowance in circumstances like this. The family allowance would be a basic sum of money that could be paid to your family depending upon their specific circumstances. Whatever the amount is, it would be intended to maintain your spouse and any children that you have for up to one year after your passing. You would likely need to request a family allowance and never judge issue orders that allow for the payment of an allowance during this one year.
The Harris County clerk’s office is the location where your family would file for probate when you pass away if you lived in Houston. IF you live outside of the Houston area then your family will need to perform a bit of research to determine what court is the appropriate venue for matters related to probate. IT could be a county or probate court depending on how your county organizes itself or its size.
What should you take away from this discussion?
There is no doubt that discussing your death is an uncomfortable subject. It is not easy to think about passing away. It is even more difficult to think about passing away unexpectedly. I think that many of us only consider death to be a possibility when we are older and are in a bed surrounded by our family. This would be an ideal situation for many of us, but from my experiences, I would tell you that it is unlikely that this is how you or I will pass away. It could even be the case that we pass away at a young age and without any warning whatsoever.
Once you pass away your family will have a great deal of time to mourn your loss and have to do with the emotional ramifications of your passing. This will not be an easy time for them. During this time your relatives will have to plan any funeral activities, obtain a death certificate and decide about how your property should be passed along. All of these steps are made more difficult if you were to pass away without a will. As you can see, your passing without a will makes difficult circumstances even tougher to manage for your family. This is not the situation you want to put your family in.
What dying without a will also do is put the probate laws of Texas front and center in the lives of your family members. The law will determine who your heirs are and how your assets are going to be disposed of. The probate court judge will decide on whether assets are part of your community estate or part of your separate estate. Community property passes to your spouse as we have discussed earlier. However, if you were to have a will then a detailed analysis of community versus separate property would not be necessary.
Simply put, your family is at a disadvantage if you were to die without a will. Although probate laws attempt to dispose of your property efficiently and fairly that does not mean that the best interest of your family will be front and center. While there will be an opportunity to present arguments to a probate judge as to how your property should be divided you are still leaving a lot up to chance and how a probate judge will view your circumstances in light of the probate laws on intestate succession.
A much better plan for you and your family would be to sit down and create a will when you can. Depending on the size of your state this does not have to be a lengthy process and can be completed in short order. Getting yourself organized and being able to coordinate what you want to see happen with your property upon your death with an experienced probate attorney is incredibly important. Do not leave it up to the state of Texas or a probate judge to see to it that your property is disposed of appropriately after your death. Take matters into your own hands and create a will.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys are available six days a week for free of charge consultations. These consultations are a great way for you to learn how you and your family circumstances can be improved by drafting they will or creating a trust intended to benefit your family now and in the future.