Dying without a Will
Who Inherits When A Married Person Dies Without a Will in Texas? Many Texans think that the surviving spouse will inherit all of a deceased spouse’s estate if there is no will. This is NOT always the fact. Here is how the property will be divided. Community Property Texas has a a presumption that all property acquired during a marriage is community property. Under Texas laws, when a spouse dies and all of the deceased spouse’s children are also the surviving spouse’s children: The surviving spouse will inherit all of the deceased spouse’s community property. This will happen only IF ALL children are also the children of the deceased spouse. Under Texas laws, when a spouse dies and the deceased spouse has children that are not the children of the surviving spouse: The deceased spouse’s one-half interest in the community estate will pass to that spouse’s children and the surviving spouse will keep his or her one-half interest in the community property. Homestead Real Property The surviving spouse will have a life estate in the homestead. This means that the surviving spouse will have the right to use the property until his or her death. If the deceased spouse does not have any children, then the surviving spouse will inherit all of your community property. Separate Property Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The intestate distribution formula is different for separate property: If you are married and have children, the personal property and real property are handled differently. Personal Property The surviving spouse and children will receive one third of your separate personal property. Real Property The surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. The surviving children inherit the remaining interest outright. If you are married but don’t have children, your separate personal property will be distributed to your surviving spouse . However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula. If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will. For assistance creating a will or updating one that you may already have, please contact Cynthia Fronterhouse of Nimmons & Fronterhouse.
Continue ReadingElder Law: Documents Every Adult Needs, Probate and More
The following transcript was excerpted from a June 22, 2020 virtual presentation on elder law, wills and probate in Texas by attorney Cynthia Fronterhouse. The event was organized and sponsored by CarePartners, whose vision is to be the leader in caregiving resources in Texas. You can click the image above or watch the recorded presentation on YouTube. My name is Cynthia Fronterhouse and I am an attorney in Houston. I actually practice law with my father. He is semi-retired, but he has over 50 years of experience. He has always focused his practice on construction litigation, representing small companies, so when I joined him, so he could go enjoy his life, I really enjoyed meeting with the clients and their families, preparing for the inevitable as well as when they lost a loved one. I grew up in the Spring Branch/Memorial area. I did go away to college to Smith College in Massachusetts and then I came back to Texas and went to the University of Texas Law School. I am married, and I have one daughter, age nine years old. Really helping families before they lose someone and then when they lose a loved one is really my passion and walking them through that process. It’s so difficult when you’re trying to process and grieve, and then having to deal with a lot of the probate aspects is tough. So that’s really what I’m going to focus on. Most people know what a will is and why it’s important, but then what happens when you do lose a loved one? A will is a document that determines where your assets are going to go when you die. It doesn’t take effect until you’ve passed away, so once you pass away is when your will goes into effect. And one of the big cases that we had when I first started with my dad was one where one of his clients lost a brother, who didn’t have a will. When he died, he had two minor children. Watching the family go through that grieving process, and then having to see how difficult it was because the man didn’t have a will was what really inspired me to help people and educate people. That’s so important. You can use a will to determine where your assets are going to go and to whom you want them to go. Also in your will, you can appoint a guardian to your children. Also in your will you can appoint an executor. The executor is only responsible for determining and following your wishes that are outlined in your will. So what happens when you lose someone if they have what’s called probate? Probate is the process of authenticating the will. You file an application to probate a will with the court. You file the original will with the court and normally do it in the county where the person resided. You have to do that within four years. Then you file with the County Clerk. You have to wait 10 days because the will is posted at the County Courthouse and then, after 10 […]
Continue ReadingWhat is Probate?
When there is a will… probate is the legal process whereby a will is authenticated in a court of law and arranges for the distribution of a person’s estate. Texas offers some of the simplest probate options, allowing families to quickly conclude personal and financial family matters with dignity. If the will is uncontested and the estate is not large or complex, probate can be a routine procedure, where a judge verifies the documents and releases the estate to be transferred. However, if there are disputes, questions about the validity of the will, no beneficiaries are named or the appointed executor does not want the job, probate can become a lengthy, complex and expensive process. After the executor is appointed in the hearing before the judge, below are a few steps that must be completed. The assets will need to be tracked down and inventoried. Non-cash property must be appraised and sold, if necessary, to settle debts and pay taxes. Once the financial obligations are fulfilled, the remaining property is divided according to the will’s instructions or the court’s order. When there is not a will… probate is whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at the time of death in the absence of a legal will. When a person dies without a will in Texas, their property will be distributed under Texas intestate law. This typically means that heirs will have to go through the Texas Probate Courts to determine who the proper heirs are and to settle the decedent’s estate. This is called a Suit to Determine Heirship. What is a Suit to Determine Heirship? If there is not a will and the estate is worth more than $50,000 (not including the homestead and certain non-probate assets), it may be necessary for a court to determine who the heirs are according to Texas law. The judge will appoint an attorney ad litem to represent the interests of potential or unknown heirs. A hearing will then be held and two disinterested witnesses and the attorney ad litem will give testimony. The Heirship Proceeding is generally more expensive than probating a will and can become expensive, if there are many heirs, minor children or complicated business or real estate assets in the estate. For more information on wills, probate, handling a suit to determine heirship or another estate matter, contact Cynthia Fronterhouse .
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