Most of us don’t like to contemplate our own mortality. It isn’t surprising, then, that many people don’t make a plan for what will happen when they die. But if you die without a will, then your property will be subjected to Texas’ intestate succession laws.
Intestate succession is the process by which property is divided if a person dies without a will. There are strict rules for who gets what based on what relatives survive you. This can often lead to a result that you never intended, such as a romantic partner with whom you co-habitated for years but never married being completely disinherited.
At Forbes & Forbes, we work with individuals and families to help them develop an estate plan that meets their needs. We understand that this subject can be difficult, which is why we treat each client with compassion and respect. To learn more, reach out to our law office to schedule a consultation with a member of our legal team.
What Is Intestate Succession?
In Texas, you have the ability to draft a last will and testament to specify who will receive each of your assets. If you die without a will, however, then your estate will go through a process known as intestate succession. In its simplest terms, intestate succession means how your assets will be distributed based on whether you have a surviving spouse, children, living parents, or other close relatives when you pass away.
Texas intestacy laws set out a formula for dividing your assets based on what living relatives you have at the time of your death. These relatives must survive you by at least 120 hours in order to inherit through intestate succession. While this survivorship period does not often come up, it may be an issue in some situations, such as if a person is killed in an accident with one or more family members who succumb to their injuries after a few days.
Generally, your closest living relatives get priority when it comes to your assets. If you are not survived by a spouse, descendants, parents, or siblings, then your property will pass to other family members – such as nieces and nephews, grandparents, aunts and uncles, and other relatives. If you are not survived by any family members at all, then Texas intestate succession laws provide that your property will escheat (go to) the state.
With intestate succession, you have no say in how your assets will be divided among your family members. Close friends and non-spouse romantic partners cannot inherit through intestate succession laws in Texas. If you want to avoid this outcome, you should consult with an El Paso probate attorney to talk about drafting a last will and testament based on your wishes.
How Does Intestate Succession Work in Texas?
Under intestate succession, the relatives closest to you will inherit your assets upon your death. The way that your property is divided (who gets what) depends on whether you have a spouse, children, and/or living parents at the time of your death.
Under the intestate succession laws in Texas, your property will be divided as outlined below. If you die with:
- Children and no spouse: your children (including legally adopted children) will inherit everything.
- Spouse, but no living children, parents, or siblings: spouse inherits everything.
- Parents, but no living children, spouse, or siblings: parents inherit everything.
- Siblings, but no living children, spouse, or parents: siblings inherit everything.
- A spouse and children that are also the children of your spouse: spouse inherits all community property, ⅓ of your separate personal property, and the right to use your real estate for the remainder of their life; your children will inherit everything else (split equally).
- A spouse and children who you do not share with your spouse: spouse inherits ½ of the community property, ⅓ of your separate property, and the right to use your real estate for the remainder of their life; your children will inherit everything else, including the other ½ interest in the community property (split equally).
- A spouse and parents: spouse inherits all community property, all of your separate personal property, and ½ of your separate real estate; your parents will inherit everything else.
- One parent and siblings, but no spouse: parent inherits ½ of your property; siblings equally share the remaining ½ of your assets.
- A spouse and siblings, but no parents: spouse inherits all community property, all of your separate personal property, and ½ of your separate real estate; your siblings will inherit everything else (split equally).
If you die without a surviving spouse, children, siblings, and parents, then your property will pass to more extended family members, starting with nieces and nephews.
As demonstrated by this chart, dying without a will in Texas can lead to results that you don’t want – such as foster children and stepchildren that you haven’t formally adopted being left out entirely. Given the complexities of Texas’ intestate succession laws – and the potential inequities that could result – your best option is to work with an El Paso probate lawyer to draft a valid will that ensures that your property is distributed according to your wishes instead of what the state dictates.
Which Assets Pass By Intestate Succession?
Intestate succession laws do not apply to all assets that you own. Even if you don’t have a will, some of your assets won’t be subject to the intestate succession laws in Texas. Essentially, if a piece of property or another asset wouldn’t go through the probate process if you had a will, it won’t go through intestate succession.
For example, if you have funds in a retirement account such as an IRA or a 401(k), that money will go to your designated beneficiaries. Similarly, any life insurance proceeds will go to the person that you named, rather than through intestate succession. Other assets that won’t go through intestate succession include any property that you have transferred to a living trust, property that you own in joint tenancy, and payable-on-death bank accounts.
In other words, it is possible for intestate succession to have little impact on your estate after your death if you structure it correctly. However, this can be difficult to do without the help of a seasoned probate attorney. In El Paso, the legal team of Forbes & Forbes can work with you to help you achieve your goals with a comprehensive estate plan.
Get Your Estate Plan in Order Today
As the saying goes, a failure to plan is a plan to fail. This is particularly true when it comes to estate planning: if you don’t have a last will and testament or other key documents, then the State of Texas will decide for you (a result that few people want).
Forbes & Forbes represents clients in El Paso and throughout Texas, helping them put together an estate plan that meets their goals. We will help YOU decide how your assets should be distributed – rather than leaving it up to the state. To learn more or schedule a consultation with an El Paso estate lawyer, call us at 915-533-5441 or fill out our online contact form.