What to Do if a Family Member Died Without a Will

After losing a family member, the last thing that most people want to do is deal with legal matters. If your loved one had a last will and testament, then you will need to go through the probate process. But what happens if your family member died without a will?

Under Texas law, a person who dies without a will is said to have died “intestate.” There are specific rules that determine how their estate will be divided, known as intestate succession. The process of settling an estate through intestacy can take many months and will involve a probate court. 

Texas’ intestate succession laws are complicated. If your loved one has died without a will, an El Paso probate lawyer can help you sort through their estate – and guide you through the probate process.

What Is Intestate Succession?

Intestacy laws are, in essence, the state providing a will for a person who died without one. As a general rule, with intestate succession, the decedent (deceased person)’s property will first go to close family members, starting with a surviving spouse and children. If there is property remaining, then it will be divided among other family members, including parents, siblings, nieces, nephews, grandparents, and even more distant relatives. If no relatives can be found, then the property will go to the state.

In Texas, who gets what depends on whether the decedent had living children, a surviving spouse, or other close relatives when they passed away.  Close friends cannot recover under these laws – only blood relatives or relatives through adoption.

Generally, property may be divided as follows, based on whether your family member had:

  • Children but no spouse: children inherit everything 
  • Spouse, but no children, parents, or siblings: spouse inherits everything
  • Parents, but no children, spouse, or siblings: parents inherit everything
  • Siblings but no children, spouse, or parents: siblings inherit everything
  • A spouse and children (who are also the children of this spouse): spouse inherits all community property, plus ⅓ of separate personal property and the right to use the real estate for life; children inherit everything else.
  • A spouse and children (who are not the children of this spouse): spouse inherits ½ of the community property, ⅓ of separate personal property, and the right to use the real estate of life; children inherit everything else.
  • A spouse and parents: spouse inherits all community property, all separate personal property, and ½ of separate real estate; parents inherit everything else.
  • One parent and siblings, but no spouse: parent inherits ½ of property; siblings equally share ½ of remaining property.
  • A spouse and siblings, but no parents: spouse inherits all community property, all separate personal property, and ½ of separate real estate; siblings equally inherit everything else.

As you can see, these laws are complicated and are based on both family relationships and how property is legally defined. 

Specifically, when it comes to surviving spouses, the property is either characterized as community or separate property. Community property is defined as property acquired during marriage, except for gifts and inheritances given to one spouse. Separate property is any property acquired before marriage. Many married couples hold most or all of their property as community property.

If your loved one dies without a will, you may be entitled to all or a portion of their estate. The amount that you receive will be based on (1) your relationship to them; (2) whether there are other close relatives; and (3) whether the property is considered community or separate property (if they were married at the time of their death).

Who Is Entitled to Inherit under Intestate Succession?

In Texas, if someone dies without a will, then their estate will be distributed to their closest family members, which is usually their spouse and/or children. In most cases, it is relatively simple to figure out who qualifies as a close family member. However, there are situations where it can be harder to make this determination.

For example, if your domestic partner dies without a will, then you may not be entitled to any portion of their estate – unless you can prove that you had a common-law marriage. Texas state law recognizes common-law marriages, but the burden will be on you to prove that you were married. To demonstrate that your partner was your common-law spouse, you must show:

  1. That you and your common-law spouse agreed that you were married, lived together in Texas after coming to that agreement, and represented yourself to others as a married couple; or 
  2. That you and your common-law spouse signed a Declaration of Marriage.

If you can prove that you were in a common-law marriage, then you will be able to inherit under the laws of intestate succession. If you fail to do so within the 2-year statute of limitations, then there will be a rebuttable presumption that you were not married.

Divorce represents another complicating factor in intestate succession. Generally, if you and your spouse are legally separated (but not yet divorced), then you will not be entitled to inherit when they pass away. If you are legally divorced, then you will not inherit if your ex dies without a will.

If your parent died without a will in Texas, then you must be able to prove that you were considered their child, legally. For most minor and adult children, this is not an issue. However, there are a number of unique situations that may arise:

  • Adopted children: legally adopted children receive a share of the estate, just as biological children will.
  • Foster children and stepchildren: if a foster or stepchild was not legally adopted, they will not automatically receive a share of the estate.
  • Children placed for adoption: even if a child was legally adopted by another family, they may be entitled to a share of the estate.
  • Children conceived by not born before death: as long as they survive for at least 120 hours, a child that was not born before the decedent passed away will receive a share.
  • Children born outside of marriage: these children may receive a share if (1) their parents participated in a marriage ceremony that was later determined to be void; (2) their father acknowledged paternity in writing; (3) the parent legally adopted the child; (4) paternity was established under Texas law during the decedent’s lifetime; or (5) the children successfully petitioned the probate court to determine paternity and inheritance rights.
  • Children born during marriage: these children are assumed to be legal children and will receive a share of the estate.
  • Grandchildren: will only receive a share if their parent is not alive to receive their share.

This area of law can be tricky, particularly if your family situation is outside of the norm. A law firm that has experience handling probate cases can provide legal advice, and work with you to advocate for your inheritance rights.

Finally, to inherit under Texas’ intestate succession laws, you must outlive the decedent by 120 hours. This law may be invoked in rare situations, such as when two family members are involved in a car accident, and one dies before the other. For example, if your sister and mother were in a fatal crash, and your mother dies first, then your sister’s estate will receive a share of your mother’s property only if your sister survived for at least 120 hours. Otherwise, her portion of the estate will be divided among the remaining family members.

Is Any Property Exempt from Intestate Succession Laws?

In Texas, not all property will be divided through intestate succession. Certain types of property can pass directly to beneficiaries and heirs. Typically, this occurs when an asset names a beneficiary, such as:

  • Life insurance policies that name a beneficiary;
  • Real estate, bank accounts, and other assets held as community property with right of survivorship;
  • Property held in a living trust, which means the property is not in the decedent’s name;
  • Funds in an IRA, 401(k) or retirement plan for which a beneficiary is named;
  • Funds in a payable-on-death (POD) bank account;
  • Stocks or other securities held in a transfer-on-death (TOD) account; and
  • Real estate or vehicles held with a TOD deed or title document.

In other words, these assets are exempt from Texas intestacy laws. If your parent, spouse, or loved one died without a will, then these items will not be subject to division through intestate succession. Instead, whoever is named as a beneficiary will receive this property.

Settling an Estate Without a Will

There are several methods of settling an estate for someone who dies without a valid will in Texas. Generally, you will need to file an affidavit with the probate court in the county where the decedent resided and in any county where they owned real estate. This affidavit must list all known assets and liability of the estate, the family history, and the identity of known heirs. It must be signed by all heirs plus two disinterested witnesses.

If the estate is relatively small ($50,000 or less), then the probate court will issue an order approving the affidavit. The property will then be divided according to the rules of intestate succession. 

However, for larger estates, then a more involved process may be required. This may include a Determination of Heirship, where a court makes a formal declaration as to the identity of the decedent’s heirs based on an independent investigation. In any situation, it may be helpful to work with a seasoned probate lawyer who can guide you through the process. 

Contact an Experienced Probate Attorney

When someone dies without a will, the division of property and assets are at the whim of Texas’ intestacy laws which can be complicated and sometimes difficult to sort out. These laws serve an important purpose – making sure that close relatives receive a share of the estate. The intestate succession process can be messy and often causes hard feelings.

If your loved one died without a will, our law firm is here to help.  We will represent your interests throughout the probate process, and work with you to draft an estate plan of your own. For more information about intestate succession or developing an estate plan, call our office at 915-533-5441 or fill out our online contact form to schedule a free consultation with an El Paso estate planning lawyer.

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