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The Basics of Texas Probate: A Guide for Executors and Heirs

When it comes to a loved one passing away, it never happens at a good time. There is the initial shock of that person’s passing, the realization that there is more going on than just your grieving, and then the “real world” considerations regarding the finances of that person and their immediate family which can snap you to attention. Any person who has lost a spouse or a parent can tell you about this. Death is certainly a personal development for you and your family, but it is also a legal development that will require at least some involvement of the law at least when it comes to handling administrative matters associated with your loved one’s estate.

The basic legal framework associated with the passing of a loved one looks like this on a macro level. There will be a death certificate that is issued and then once that occurs the person’s estate will need to be passed on to other people or entities. If your loved one had a will then the terms of the will should be followed by whoever is named as executor and the property will be passed along to beneficiaries once creditors are paid (if there are any). 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.

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 probating of a will to ensure that beneficiaries can receive the property that they are promised under 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.

While the title to the property of the deceased will immediately pass to family/beneficiaries at the passing something will need to be done about the assets. Those assets of the estate are controlled either by the executor of the will or the administrator of the estate as appointed by a probate court. Debts will need to be settled and any outstanding claims against the estate will need to be dealt with before assets are distributed to heirs or beneficiaries. The key to this discussion is whether your loved one died with a legally valid will.

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 his estate will execute upon his wishes, hence his being called an “executor.” However, if his will is challenged and it is determined to not be valid then the estate will be distributed according to the terms of Texas law. 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 is property that was owned by your loved one before he or she got married. You can also acquire separate property during your marriage by gift or inheritance.

On the other hand, community property is property other than separate property which is acquired by a spouse during their marriage. Depending upon whether your loved one was married at the time of their passing, it could be that most if not all the property in their estate are properly classified as community property. This will have a significant impact on how the property is distributed to heirs. Once a probate court gets its hands on the case it will determine whether property is community or separate and how it should be divided.

You can review another blog on this website to see how community property and how separate property are treated 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. Since we have limited space in this blog post, however, we will not go into detail about the specific ins and outs of community versus separate property being 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 decided 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

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.

Let’s consider the following hypothetical situation. Suppose that your loved one preferred 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 has a spouse whom he is survived by as well as children- counting children who are not also children of the surviving spouse- then his surviving spouse will only receive their one-half share of the community property owned by your loved one at the time of their passing. 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 that there are costs associated with your loved one not having a will once he or she passes away. A will allows property to be passed to beneficiaries without much of an issue. Dying without a will means that the property can be held up in probate for an extended period. A probate case is a likely method to get this property out of an estate and into the hands of the heirs. You may be in a position where you could be named as the administrator of your loved one’s estate – if you would be 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. We know from the beginning part of today’s blog post that a person’s children are protected in large part by the intestacy laws of Texas. However, the question that you may be wondering at this stage is how are adopted, illegitimate, and stepchildren treated under the intestacy laws of Texas. Are they accounted for? 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 that a person (known as a testator) creates to show what their intentions and desires are for how their property should be distributed upon 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 property of yours and which people should care for your minor children if you and your child’s other parent (spouse, etc.) pass away simultaneously to you.

What a will can also do is set up a trust that would allow you to have certain types of property that you own 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 would need to be at least 18 years old or lawfully married. Next, you would need to be of sound mind at the time that you sign the will. Third, you would have needed not to have been fraudulently induced into making the will and have the intent to pass property from your estate to beneficiaries in creating the will. The state of Texas allows handwritten wills which are also known as holographic wills. It must be completed in your handwriting, for example, if we are talking about your will.

It cannot be half in your handwriting and half type-written or half in your handwriting and half in your sister’s handwriting. The handwritten will does not need to be witnessed to be valid. Whatever property is not disposed of in the will would 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.

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