What Happens If My Family Member Didn’t have a Will in Place When They Passed?

A will gives a person the ability to control what will happen to their property and assets. You can use a will to provide clear, legally enforceable instructions for what should happen to your property and assets when you pass away. However, a majority of American adults lack a valid will. According to a recent Gallup survey, 56 percent of adults nationwide do not have a will. 

This raises an important question: How do we determine who inherits what if my loved one passed away without a will? In Texas, their estate will be handled through the “intestate succession” process. In this article, our San Antonio estate planning attorneys explain what happens if your family member passes away without a will in Texas. 

Texas Law: A Person Who Passes Away Without a Will is ‘Intestate’

If your loved one passed away without a will, they have died ‘intestate’ for the purposes of Texas law. This means that all of the property/assets that would have been covered by their will must be distributed in accordance with the state’s pre-set rules and regulations. In other words, they will not get a say in what happens to their property. Texas law will determine who gets what. Here is a basic overview of intestate succession under Texas Estates Code § 201.001

  • Parents, but no Spouse or Children: Parents get everything. 
  • Spouse, but no Children or Parents: Spouse gets everything. 
  • Children, but no Spouse: Children split everything. 
  • Spouse and Shared Children: Spouse gets all community property and one-third share of separate property. Children split any remainder. 
  • Spouse and Children from Another Relationship: Spouse retains one-half of community property and one-third of separate personal property and retains a one-third life estate in the separate real property. Children inherit the decedent’s one-half of the community property and split the remainder of the separate property. 
  • No Spouse, Child, or Parents: Next of kin is the heir. 

These are, of course, just a few of the common scenarios. Intestate succession can quickly get very complicated in Texas. You should not hesitate to reach out to an experienced San Antonio, TX probate lawyer for help with your case. 

No Will? Probate May Still Be Required

In Texas, probate is the name of the legal process through which a person’s estate is settled, debts are paid, and assets are passed to the appropriate beneficiaries. When someone dies with a will, that document must be submitted to the probate court. The court will confirm the validity of the will. When someone dies without a will, probate may still be required. The process will depend on the value of the estate: 

  • Small Estate ($75,000 or Less): In Texas, a small estate affidavit can be filed by a surviving family member if a person dies without a will and only has a “small estate.” Under Texas Estates Code § 205.001, a small estate is defined as less than $75,000 in total value, excluding the homestead exemption and other exempt property. 
  • Large Estate ($75,000 or More): When someone passes away without a will and has a large estate ($75,000 in total value or greater), the full probate process is required. The probate court must oversee all steps, including the selection of a personal representative, the identification & collection of assets, the settling of creditor claims, and the distribution of assets. 

Not All Assets are Subject to Intestate Succession (Trusts & Beneficiary Designations)

The Texas Intestate succession laws cover all property that would have passed through your loved one’s will, had one existed. Many important assets—money, real estate, vehicles, personal property, etc.—can all be passed through intestate succession. That being said, the Texas intestate succession laws do not always apply to the entirety of a person’s estate. Common assets that are not subject to intestate succession in Texas include: 

  • Property/assets placed in a legally valid trust;
  • The proceeds of a life insurance policy; 
  • Retirement funds in an IRA or 401(k)—assuming an up-to-date beneficiary designation; and
  • Any other account with a valid beneficiary designation. 

For example, imagine that a man passed away without a will in Bexar County. He had a $100,000 balance in his Individual Retirement Account (IRA). He listed his brother as a beneficiary on that account. The balance of the IRA would pass directly to his brother. The asset would not be subject to intestate succession nor would it go through the Texas probate process. 

Get in Touch With Our San Antonio, TX Estate Planning Lawyers for Help 

At Weisinger Law Firm, PLLC, our Texas estate planning attorneys have extensive experience assisting people and families with estate administration and the probate process. If you have any questions about intestate succession, we are more than happy to help. Contact us today to set up a fully confidential review and evaluation of your case. We provide probate & estate planning services in San Antonio, Bexar County, and throughout the surrounding area. 

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