WHO GETS WHAT?
Do you know someone who has died without a will? Has one of your relatives died without a will? Half the people in the U. S. over 55 DON’T’ have a will.[1] If there is no will, who gets the property?
Upon Death; What is Your Property (“Estate”)?
For any financial account, insurance policy, or transfer on death deed, where you have named a beneficiary, upon one’s death, that property automatically transfers to the beneficiary and is no longer “yours”, or no longer a part of your estate. Only the property in your estate is subject to be inherited, either by will or if you do not have a will, by ‘intestacy’, the Texas law that sets forth which of your relatives will get your property.[2]
For a person who is single at the time of death, the intestate distribution of the deceased’s estate is as follows:
| Single with children. | Children inherit everything. |
| Single with parents, but no children or siblings. | Parents inherit everything. |
| Single with siblings, but no children or parents. | Siblings inherit everything in equal shares. |
| Single, with one parent and siblings. | Parent inherits ½ of deceased’s property. Siblings share equally in remaining ½ of deceased’s property. |
If the deceased was married at the time of death, there are two types of property. Property one has acquired prior to a marriage or by inheritance is ‘separate’ property, 100% of which belongs to the estate of the deceased. Community property is property acquired during a marriage and belongs 50% to each spouse. Upon the death of a married person, their estate consists of all of their separate property and ½ of the community property.
The intestacy law makes a distinction between an interest in real property (real estate) and personal property (all assets other than real property, example; money, ‘things’, intellectual property, business interests).
For a person who is married at the time of death, the intestate distribution of the deceased’s estate is as follows:
| Married with no children, parents or siblings. | Surviving spouse inherits everything. |
| Married, with all children the product of the marriage with the surviving spouse | Surviving spouse inherits all of deceased’s community property, plus 1/3 of deceased spouses separate personal property and a life estate in all of deceased’s separate real property. Children inherit everything else. |
| Married with children whose biological parent is not the surviving spouse. | Surviving spouse inherits 1/3 of deceased’s separate personal property and a life estate in all of deceased’s real property. Deceased’s children inherit everything else, including all of deceased’s community property. |
| Married with parents and no children. | Surviving spouse inherits all of deceased’s community property, all of deceased’s separate personal property and ½ of deceased spouse’s separate real property. Parents inherit everything else (1/2 of deceased’s spouse’s separate real property. |
This is just a brief outline of the Texas intestacy law. The intestacy law tell how property is to be distributed. IT DOES NOT CONVEY TITLE. For there to be an actual transfer of title, additional documents or separate legal proceedings need to be filed. Depending on the particulars of the estate this may include an heirship determination, administration, heirship affidavit, or small estate affidavit. These will be discussed in subsequent blogs.
If you have a situation where a loved one has died without a will, and property needs to be distributed, contact the Law Office of Elliott Klein, PLLC for a consultation.
[1] https://www.caring.com/caregivers/estate-planning/wills-survey
[2] Chapter 201, Texas Estates Code