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