If you live in Texas and don’t have a valid Texas will when you pass away (called intestate succession), who inherits your Texas property gets complicated because the beneficiaries are determined by the Texas Estate Code.
Who takes your property when don’t have a valid will depends on whether you are married, whether the property is community or separate, whether the property is real estate or other assets, whether you are single or widowed, whether you have surviving children, and whether your parents, siblings, or their descendants are still living.
Married Person with Children–Separate Property.
When a person is married and has children, his or her spouse receives a life estate in any separate property real estate he or she owns (the surviving spouse may occupy the property so long as he or she lives, but can’t sell it) and his or her children take the separate property real estate in equal shares when the surviving spouse dies. All other separate property of a married person with children is divided two-thirds (in equal shares) to the children and one third to the surviving spouse.
Married Person with Children–Community Property.
When a married person has children who are all descendants of both parties in a marriage, the surviving spouse takes all the community property (both real estate and other assets) when his or her spouse dies. However, if there are children from outside the existing marriage, then the children take one half of the community property real estate and other community property assets in equal shares and the surviving spouse takes the remaining half of the community property real estate and other community property assets.
Single or Widowed Person Without Children.
If a person passes away single or widowed without children, who takes his or her property depends on who survives the person. If only his mother and father survive, they take all his or her real and personal property in equal shares. However, if his mother, father and siblings survive, then one half his or her real and personal property goes to his mother and father in equal shares and one half goes to his siblings in equal shares.
Widowed Person with Children.
If a widow or widower passes away without a will, his or her property passes to his or her children or their descendants in equal shares.
Married Person Without Children.
If a married person passes away without children, who takes his or her real and personal property depends on which members of his or her family are surviving at the time of his or her death. For example, if his parents survive, one quarter of his or her separate property real estate goes to the mother and one quarter of his separate property real estate goes to his father, while the remaining half of his or her separate property real estate goes to the surviving spouse.
If there is no surviving parent, then one half his or her separate property real estate goes to his or her surviving siblings or their descendants and one half goes to the surviving spouse. If only one parent survives him or her, one quarter of the separate property real estate goes to the surviving parent, one quarter goes to surviving siblings or their descendants, and one half goes to the surviving spouse.
If no parents or siblings of the deceased survive him or her, all the separate real estate goes to the surviving spouse. If no siblings or their descendants of the deceased person survive him or her, then one half the separate real estate goes to the surviving parents and one half to the surviving spouse. All the other property (separate assets other than real property and all community property) goes to the surviving spouse.
The Texas Estate Code tries to be fair, but it’s not a satisfactory substitute for a valid Texas will that expresses your preferences about who should take your separate and community property when you pass away.
If you don’t have a valid Texas will, please contact San Antonio Wills and Probate Attorney Harry L. Munsinger at 210-776-7707 and make an appointment to discuss an estate plan for your family with him.