Probate Considerations When There is Not a Will

For many decedents, the probate process involves a probate court judge reviewing that person’s will, ensuring that the will is valid, and then distributing the person’s assets to his or her beneficiaries. At times, however, the probate court has to decide how to proceed when there is no will in place. Even when there is no will, the decedent’s assets and debts must be somehow distributed; in Texas, there are certain rules that dictate how this process plays out.

Rules of Intestate Succession

You may have heard the term “intestate succession” either on our blog or otherwise. This term refers to the distribution of assets to a decedent’s loved ones according to the state’s rules. Essentially, for a person that dies without a will, there are rules and regulations in place that say where that person’s money, property, and debts will go.

If the decedent has a spouse, that spouse will be first in line to inherit the decedent’s estate. If there are no children or parents, the spouse will, in fact, inherit the entire estate. If, however, the decedent and spouse had children together, the spouse receives 1/3 of the decedent’s personal property and the right to their physical property, while the children inherit everything else.

When the decedent leaves behind children but no spouse, the children split up the entire estate. Between a decedent’s children and his or her parents (that is, the children’s grandparents), the parents inherit the estate.

Siblings also have certain rights to a decedent’s estate. If the decedent left behind a spouse and siblings, the spouse receives all of the personal property, but the siblings and the spouse split up the real estate owned by the decedent. When a person’s siblings are the only surviving family members, those siblings split up the estate equally.

If there are no remaining family members, the probate court will search the decedent’s family tree until it finds the person’s closest living relative. If there are no living relatives at all, the state of Texas will receive the decedent’s assets.

Ultimately, it can be difficult for family members and friends when a decedent fails to leave behind a will. If the decedent promised certain property verbally to a person but failed to leave that information in a written will, it could become very difficult to execute that promise, given the rules of intestate succession. In order to avoid this process, the best thing you can do for yourself is set up a will and make sure it will hold up in a probate court after you are gone.

Do You Have an Estate Planning Attorney in Texas?

For more information about how to plan for your loved ones after your death, call our office at McCulloch & Miller. We are a trusted team of Houston estate planning and probate lawyers that can lead you through your estate planning process so that you can rest assured your loved ones are well-protected in the future.

For a consultation with a member of our team, call us today at 713-597-7176. You can also fill out our online form to get in touch with us.


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