Dying Without a Will: A Short Guide

While many people assume that a will is only for the rich, a properly written legal will is the cornerstone of any estate plan for anyone who owns property or may, in the future own property. That includes just about everyone.

It is the primary means of transferring your assets upon death and instructs the executor how to go about their duties when you are no longer present to guide them. But what happens to those assets if you (or a loved one) dies without a will?

It’s easy to put off drafting a will until later in life, but the reality is that having a detailed estate plan will help you (and your heirs and beneficiaries) in the long-term. Dying without a will can cause serious complications during the probate process, and can require months to sort out before your descendants receive the assets you have left for them; even then, because intestacy is guided by the court, the results may ultimately not be what you would have wanted.

What Is Not Affected By Intestacy?

In order to best understand how dying without a will can affect your assets, it is important to distinguish assets that are not affected by a will—in other words, what is not affected by Texas intestacy laws. Generally, these items are passed to the spouse or children of the deceased regardless of what a will would typically state, and include the following assets:

  • Life insurance proceeds 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 your 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.

To find out who inherits your other assets—generally, property for which no beneficiary has been formally named—intestate laws fill in the gaps and allow heirs and beneficiaries to receive assets from the deceased according to the laws of descent and distribution of the State of Texas.

Who Gets What When There Is No Will?

Unfortunately, it is incredibly difficult (if not impossible) to determine who exactly will receive what when a person dies without leaving behind a will. This is because intestacy during probate generally awards heirs and beneficiaries according to Texas Law.

The determination of who will take the property upon your death is primarily based upon whether or not when you die you are married, whether the property is community property or your separate property and whether you have children. 

An experienced probate attorney can help you determine who-inherits-what in any specific scenario, but the following is generally true based on who survives the deceased spouse:

If the deceased is survived by a spouse or close relative…

  • Survived by a spouse and children who are also children of the spouse: Surviving spouse shall inherit all of the deceased’s community property, plus one-third of the deceased’s separate personal property and the right to use the real estate for life if, and only if, the deceased spouse is survived by children who are also the children of the surviving spouse.  The surviving children, in this case, shall inherit the remaining two-thirds of the deceased spouse’s separate personal property.
  • Survived by a spouse and children who are not the children of the spouse: Surviving spouse shall inherit one-third of the deceased’s separate personal property and the right to use the real estate for life. The deceased spouse’s children shall inherit everything else, including the deceased spouse’s one-half interest in the community property.
  • Survived by a spouse and no descendants or parents: Surviving spouse shall inherit the deceased’s entire probate estate.
  • Survived by a spouse and parent(s) and no descendants: Surviving spouse shall inherit all of the deceased’s community property, all of the deceased’s separate personal property, and the right to use one-half of the separate real estate for life. The parent(s) shall inherit the other half of separate real estate.
  • Survived by a spouse and sibling(s) and no parent(s) or descendants: Surviving spouse shall inherit all of the deceased’s community property, all of the deceased’s separate personal property, and the right to use one-half of the separate real estate for life. Siblings shall receive the other half of separate real estate.
  • Survived by descendants and no spouse: The deceased’s descendants shall inherit the entire probate estate.

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 exist to ensure that all items that would otherwise be divided at the direction of a valid will are distributed according to the proximity of their relationship to the deceased—even if it is against the wishes of the deceased to see certain members of their family receive an inheritance or part of their estate.

Because of this, it is critical to draft a will in order to have your last wishes be legally recognized and honored, regardless of how old or healthy you may be. For more information about creating a will, or to discuss estate planning with an experienced probate attorney, contact us today to schedule a free consultation.

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