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When a loved one passes away, it often comes at an unexpected time, bringing both personal grief and the practical need to address financial and legal matters. Whether it’s dealing with the estate of a spouse or parent, the aftermath includes navigating Texas probate basics, which involve handling administrative tasks and legal responsibilities related to the deceased’s affairs.
The basic legal framework associated with the passing of a loved one looks like this on a macro level. A death certificate will be issued, and once that happens, the deceased person’s estate must be transferred to designated individuals or entities. If your loved one had a will, the executor must follow its terms to ensure the property is distributed to the beneficiaries after settling any outstanding debts. It would help in this situation if your loved one knew about the will and where to locate it.
What is an estate?
An estate is made up of property that a dead person (known as a decedent in lawyer language) owns at the time of their passing. That property could be real property- land, buildings, oil and gas interests, and things of this nature. Personal property also is counted among a decedent’s estate- bank accounts, retirement accounts, investments, cash, vehicles, etc. What counts as property can be extremely varied and diverse depending upon the person who passed away.
Property distribution and probate in Texas
Once your loved one passes away then their property would pass immediately to the people listed as beneficiaries in their will or to any person who is an heir under the laws of Texas intestacy. A person who dies without a will dies “intestate.” With that said, it may not be as simple as passing the property out by the executor to the beneficiaries once your loved one has passed on. Rather, it is probable that the will needs to be probated which will allow for the property to be transferred legally. By the same token, if there is no will then the court will need to determine how to divide up the estate based on the available heirs.
A court oversees the process in many scenarios for a few reasons. First, the probate court exists to protect the rights of family members of your loved one to receive property via intestate distribution. Next, the court will oversee the probate process to ensure that beneficiaries receive the property promised in the will. Finally, creditors have a right to receive property to satisfy their debts, as well. Creditors get to take a first bite at the apple before anyone else gets a hold of any of your loved one’s property.
Administering the estate: responsibilities and considerations
If your loved one does with a valid will then his property would be distributed according to the terms of that will. The executor of the estate will carry out the deceased’s wishes, which is why they hold the title of “executor.” However, if someone challenges the will and it is deemed invalid, Texas law will dictate how the estate is distributed. A person’s heirs may not be the same persons that were going to be beneficiaries under the will. In many circumstances, a person’s immediate family will stand to be the major beneficiaries under a will. However, you can choose anyone or any entity to inherit property from your estate.
What happens if your loved one dies without a will?
If you are a close family member of a person who passes away without a will then you need to know the basics of how a Texas probate court will divide up property in a situation like this. At the passing of your loved one without a will, the property will either be classified as community or separate. Separate property refers to the assets owned by your loved one prior to their marriage. You can also acquire separate property during your marriage by gift or inheritance.
Community property consists of assets acquired by a spouse during their marriage, distinct from separate property. If your loved one was married at the time of their passing, most, if not all, of their estate may qualify as community property. This classification will significantly affect how the court distributes the property to heirs. Once the probate court reviews the case, it will determine the classification of the property and how to divide it.
You can review another blog on this website to understand how community property and separate property are handled when a person dies without a will. That person’s property, in the eyes of the law, must also support the spouse for their lifetime. Therefore, more of the community estate will stay with the spouse. This means less property to go towards other heirs- at least for the time being. Due to space limitations in this blog post, we will not delve into the specific details of how community property and separate property are divided. I would encourage you to look at other blog posts on this website to learn more about this subject.
Why should you want to die with a will?
If your loved one can die with a will that would be to their advantage. The will is the controlling document when it comes to property being distributed to the beneficiaries that your loved one chooses. A court or the executor of the will cannot think that an idea your loved one had was wrong and then decide to ignore the will. Legally, the executor is there to execute the wishes of your loved one. If he or she does not act following the will then their actions can be legally challenged
Intestate succession: how Texas law divides assets without a will
When your loved one dies without a will then the law comes into play and will determine how their assets are divided. The law does not look at a situation and say: it would be fairer or more advantageous for Person X to get this or that. Rather, the law will be applied according to how it is written rather than to the circumstances of your loved one’s family. The quality of the relationship between your loved one and their children does not matter. The law will give a lot of their property to his children even if he never speaks to them or would not have wanted them to inherit property from him. His stepchildren with whom he shared a close relationship would receive nothing under Texas law.
Most of us, your loved one included, has an idea of how he or she would like their property to be divided and distributed upon their passing. We have all thought a time or two about what would happen if we pass away and have likely come to certain conclusions about what would be best for those around us. We don’t fixate on it- but we know that we have a responsibility to the people in our lives to attend to matters like this. They say that the definition of nobility is to plant a tree the shade of which you will never get to enjoy. When we die it is not as if we can benefit from our property or the decisions that we have made regarding our property. However, our family, friends, and other people can certainly stand to benefit.
How Texas law distributes property without a will
Let’s consider the following hypothetical situation. Suppose that your loved one prefers to be able to leave all their property to their spouse after he or she passes away. However, this may not happen unless there is a will in place. If your loved one dies without a will and leaves behind a spouse and children—including children from a previous relationship—the surviving spouse will receive only their one-half share of the community property that your loved one owned at the time of death. This may or may not include the family home in which the surviving spouse currently resides.
If we continue with these hypothetical circumstances, then his surviving wife would only inherit 1/3 of any separate personal property owned by your loved only a life interest in 1/3 of separate real property. Think about things like rental homes, acreage, etc. Disputes are common in a situation like this where stepchildren and a surviving spouse do not get along and do not agree on how to utilize the property after the passing of a loved one.
What sort of costs and time delays can you encounter in a situation like this?
As a potential heir of a deceased loved one, you should be aware of the costs associated with their lack of a will. A will allows property to pass to beneficiaries with minimal issues. In contrast, dying without a will can lead to extended delays in probate, holding up the distribution of the property.
A probate case is a likely method to get this property out of an estate and into the hands of the heirs. You may find yourself in a position to be named the administrator of your loved one’s estate if you are willing to accept that responsibility. An administrator is responsible for locating the heirs of your deceased loved one and keeping count of the assets that your loved one had upon their passing. Debts will need to be organized and paid, as well.
How are different types of children treated when a person dies intestate?
Let’s say that your loved one died without a will and had many children. From the beginning of today’s blog post, we understand that Texas intestacy laws largely protect a person’s children. However, you may be wondering how adopted, illegitimate, and stepchildren are treated under these laws. Are they included? If so, how?
If your loved one adopted a child, then that child’s inheritance rights are protected under Texas law. An adopted child is treated the same as a biological child.
A child born out of wedlock can inherit property from his natural mother and vice versa when the child or the mother passes away. An illegitimate child cannot inherit from the natural-born father unless that father acknowledges paternity and allows their name to be on the birth certificate of the child. Even if the father maintains a connection with the child throughout their life, then that child will still not be able to inherit property from your loved one who has passed so long as he dies without a will unless he accepts paternity.
With divorce being less uncommon now than in years past it is important to know that stepchildren do not inherit from stepparents who die without a will because she is not a person who is legal heir. If you have a stepparent who dies without a will then you should not expect to receive anything in the distribution of their assets given that you are not related to him or her. If your stepparent adopts you then you would cease to be their stepchild and would become their legal child in that case.
What are the main benefits of a will?
A will is a legal document created by a person, known as a testator, to outline their intentions and desires for the distribution of their property after their passing. If you pass away with a valid will in place, then a lot of what you had to worry about in the preceding sections regarding how a probate court must divide up the property in your name would never come to pass. The will states which people or entities should receive your property and which people should care for your minor children if you and your child’s other parent (spouse, etc.) pass away simultaneously to you.
Property management and beneficiary benefits
A will can also set up a trust that would allow you to own certain types of property to be held for the benefit of another person. A trust would transfer property with the desire to create a trust to a trustee who manages the trust on behalf of the trust’s beneficiaries. A testamentary trust is a common type of trust that is set up as a will for parents who have minor children.
For a will to be properly signed, you must be at least 18 years old or lawfully married. Next, you would need to be of sound mind when you sign the will. Third, you must not have been fraudulently induced into making the will, and you should have the intent to pass property from your estate to beneficiaries when creating it. Texas allows handwritten wills, also known as holographic wills. These must be entirely in your handwriting, such as when you write your own will.
Understanding the importance of Texas probate basics
It cannot be half in your handwriting and half typed or half in your handwriting and half in your sister’s handwriting. A handwritten will does not require witnesses to be valid. Any property not addressed in the will will be distributed to your heirs according to the terms of the Texas Estates Code. While a handwritten will may seem simpler it may ultimately prove to be a decision that you regret. Before moving forward with a handwritten will, you should consult with an experienced estate planning and probate attorney.
In conclusion, understanding Texas probate basics is essential for anyone facing the loss of a loved one. Beyond the emotional impact, there are practical and legal obligations that must be addressed promptly. Executors and heirs alike benefit from knowing the processes and requirements involved in probate to ensure smooth navigation of estate matters. By familiarizing themselves with the intricacies of Texas probate law, individuals can better manage the complexities of settling an estate and honoring their loved one’s legacy effectively.
Other Related Articles:
- Probate and Real Estate In Texas: A Comprehensive Guide
- The Role Of a Personal Representative In Texas Probate
- Common Issues In Probate Cases In Texas
- What is an Heirship Proceeding in Texas Probate?
- What Happens To Debt in Texas Probate?
- How to Avoid Probate in Texas: Tips and Strategies
- Understanding Probate in Texas: What You Need to Know
- How to avoid probate in Texas: Basic strategies for estate planning
- Understanding the Role of the Executor in Texas Probate
- How long does an executor have to distribute assets?
- 5 Common Misconceptions About Texas Probate and Estate Planning
- Estate Planning and Probate: Maximizing the Benefits of a Will
- Non-Probate Transfers Do Just That
- What assets do not go through probate?
- Is a codicil legally binding?
