Texas Intestate Plan


In General - Community Property versus Separate Property for Married Persons

Types of Property

All property, both real and personal, is characterized as two different types of property: (1) "separate property" and (2) "community property".

a. Separate Property

"Separate property" is property either (1) owned or acquired by a spouse before marriage, or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. It is the date of acquisition and the source of the property that controls not how it is eventually paid for.

b. Community Property

"Community property" is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage.  All property which exists in whole or in part in the name of either spouse is presumed by law to be community property. This is referred to as the "community property presumption".

 

 

If I Do Not Have a Valid Will When I Die?

Overview of Texas Intestate Plan (dying on or after September 1, 1993).

     Chapter 2 of the Texas Probate Code governs what happens when a person dies without a valid will or dies with a valid will which does not encompass all of the person's probate estate.  When this happens, the person's probate property which is not covered by a valid will is distributed through intestate succession.  A person may die totally intestate, that is, intestate as to the person, if the person did not leave any type of valid will.  A person may also die partially intestate, that is, intestate as to property, if the person's valid will fails to dispose of all of the person's probate estate.

    The intestate distribution scheme in Texas is derived mainly from three sections of the Probate Code: § 38 (distribution of property of an unmarried decedent and the separate property of a married decedent), § 45 (distribution of the community property of a married decedent), and § 43 (determination of the type of distribution).  Below is a summary of these sections assuming that the decedent died on or after September 1, 1993.

A.  Individual Property Distribution (Unmarried Intestate)

        The distribution of the property of an unmarried intestate is governed by Probate Code § 38(a).  Real and personal property are treated the same.

        1.  Descendants Survive

               If the unmarried intestate is survived by one of more descendants (e.g., children or grandchildren), then all of the intestate's property passes to the descendants.  See § Type of Distribution, below, for a discussion of how this distribution is done.

        2.  No Descendants Survive But a Parent Survives

               The following distributions occur if the unmarried intestate has no surviving descendants but does have at least one surviving parent.

                a.  Both Parents Survive

                      If both parents survived the intestate, each parent inherits one-half of the estate.

                b.  One Parent Survives Along With a Sibling or a Sibling's Descendants

                      If only one parent survives and the intestate is also survived by at least one sibling or a descendant of a sibling (e.g., niece or nephew), then the surviving parent receives one-half of the estate with the remaining one-half passing to the siblings and their descendants.  See § D, below, for a discussion of how this distribution is done.

                c.  One Parent Survives but No Sibling or Descendant of a Sibling Survives

                      If one parent survives and there is no surviving sibling or a descendant of a sibling, then the surviving parent inherits the entire estate.

        3.  No Surviving Descendants or Parents

              If the unmarried intestate is survived by neither descendants nor parents, then the entire estate passes to siblings and their descendants.  See § Type of Distribution, below, for a discussion of how this distribution is done.

        4.  No Surviving Descendants, Parents, Siblings or Their Descendants

               If the unmarried intestate has no surviving descendants, parents, siblings or their descendants, the estate is divided into two halves (moieties) with one half going to paternal grandparents, uncles, cousins, etc. and the other half to the maternal side.  Texas does not have a laughing heir statute preventing these remote relatives from inheriting.  If one side of the family has completely died out, the entire estate will pass to the surviving side.

        5.  No Surviving Heir

               If the unmarried intestate has no surviving heir, the property will escheat to the state of Texas under Property Code § 71.001.

B.  Distribution of Community Property of Married Intestate

        The distribution of the community property of an intestate who was married at the time of death is governed by Probate Code § 45.  Real and personal property are treated the same.

        1.  If No Surviving Descendants

               If the married intestate has no surviving descendants, then all community property is now owned by the surviving spouse.  The surviving spouse (1) retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death and (2) inherits the deceased spouse's one-half of the community.

        2.  If Surviving Children or Their Descendants

               Community property is distributed as follows if the married intestate has at least one surviving child or other descendant.

                a.  No Non-Spousal Descendants

                      If all of the deceased spouse's surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half.  Note that for spouses dying before September 1, 1993, the deceased spouse's one-half of the community property was not inherited by the surviving spouse.  Instead, the deceased spouse's share passed to the deceased spouse's descendants.

                b.  Non-Spousal Descendants

                      If any of the deceased spouse's surviving descendants are not also descendants of the surviving spouse, then the community property is divided.  The surviving spouse retains one-half of the community property, that is, the one-half the surviving spouse already owned by virtue of it being community property.  The descendants of the deceased spouse inherit the deceased spouse's one-half of the community property.  All of the deceased spouse's descendants are treated as a group regardless of whether the other parent is or is not the surviving spouse.

C.  Distribution of Separate Property of Married Intestate

        Unlike most states, Texas in Probate Code § 38(b) has retained a vestige of the common law distinction between the descent of real property and the distribution of personal property.

        1.  Surviving Descendants

                a.  Personal Property

                      The surviving spouse receives one-third of the deceased spouse's separate personal property with the remaining two-thirds passing to the children or their descendants.  These interests are outright.

                b.  Real Property

                      The surviving spouse receives a life estate in one-third of the deceased spouse's separate real property.  The rest of the property, that is, the outright interest in two-thirds of the separate real property and the remainder interest following the surviving spouse's life estate passes to the deceased spouse's children or their descendants.

        2.  No Surviving Descendants

                a.  Personal Property

                      If there are no surviving descendants, all separate personal property passes to the surviving spouse.

                b.  Real Property

                            (1)         Surviving Parents, Siblings, or Descendants of Siblings

                             If there are no surviving descendants but there are surviving parents, siblings, or descendants of siblings, the surviving spouse inherits one-half of the separate real property outright with the remaining one-half passing to the parents, siblings, and descendants of siblings as if the intestate died without a surviving spouse (that is, this one-half passes using the same scheme as for individual property).

                            (2)         No Surviving Parents, Siblings, or Descendants of Siblings

                             If the intestate has no surviving descendants, parents, siblings, or descendants of siblings, the surviving spouse inherits all of the separate real property.

 

Type of Distribution

        Whenever individuals such as children, grandchildren, siblings and their descendants, cousins, etc. are heirs, you must determine how to divide their shares among them.  See Prob. Code § 43.

        1.  Per Capita

               If the heirs are all of the same degree of relationship to the intestate, then they take per capita, i.e., each heir takes the same amount.  For example, if all takers are children, each receives an equal share.  If all children are deceased, then each grandchild takes an equal share.

        2.  Per Capita by Representation

               If the heirs are of different degrees of relationship to decedent, e.g., children and grandchildren, the younger generation takers share what the older generation taker would have received had that person survived.  For example, assume that Grandfather had three children; two of whom predeceased Grandfather.  One-third passes to the surviving child, with one-third passing to the children of each deceased child (grandchildren).  If each deceased child had a different number of grandchildren, the shares of the grandchildren will be different.  For example, if one deceased child had two children, each gets one-sixth; if the other deceased child had three children, each would receive one-ninth.

    Examples

    1.  Wilma, a widow, dies intestate survived by her only son, Sammy, and her father, Frank.  Wilma's entire estate passes to Sammy.

    2.  Harry, a widower, dies intestate survived by his mother, Mary, and his two brothers, Bruce and Bob.  One-half of Harry's estate passes to Mary.  Bruce and Bob each receive one-quarter.

    3.  Husband (H) and Wife (W) have three children, Amy (A), Brad (B), and Charles (C).  All three children are married and have children of their own.  A has one child, Mike (M).  B has three children, Nancy (N), Opie (O), and Pat (P).  C's children are Robert (R) and Susan (S).  H died intestate with both community and separate property.  In addition, H owned real and personal property of each type.

           a.  How would H's property be distributed?  All of H's community property is now owned by W; W keeps the one-half she owned by virtue of it being community property and W inherits H's one-half.  W receives one-third of H's separate personal property.  Each of A, B, and C receive 2/9 of H's separate personal property.  W receives a life estate in one-third of H's separate real property.  Each of A, B, and C receive 2/9 outright in H's separate real property as well as one-third of the remainder in W's life estate.

           b.  Assume that both B and C predeceased H.  How would H's property be distributed?  All of H's community property is now owned by W; W keeps the one-half she owned by virtue of it being community property and W inherits H's one-half.  W receives one-third of H's separate personal property.  A receives 2/9 of H's separate personal property, each of N, O, and P receive 2/27 and each of R and S receive 1/9.  W receives a life estate in one-third of H's separate real property.  A receives 2/9 outright in H's separate real property plus one-third of the remainder in W's life estate.  Each of N, O, and P receive 2/27 outright in H's separate real property plus 1/9 of the remainder in W's life estate.  Each of R and S receive 1/9 outright in H's separate real property plus 1/6 of the remainder in W's life estate.

           c.  Assume that A, B, and C predeceased H.  How would H's property be distributed?  All of H's community property is now owned by W; W keeps the one-half she owned by virtue of it being community property and W inherits H's one-half.  W receives one-third of H's separate personal property.  Each of the six grandchildren (M, N. O, P, R, and S) receive 1/9 of H's separate personal property.  W receives a life estate in one-third of H's separate real property.  Each of the six grandchildren receive 1/9 outright in H's separate real property plus 1/6 of the remainder in W's life estate.

           d.  How would the distributions be made under the facts in (a), (b), and (c) assuming that A's mother is X instead of W?  Only the distribution of community property in each case is different.  In each situation, W would only retain her one-half of the community.  H's share of the community property passes to his descendants because not all of his descendants are descendants of W.  In (a), each of A, B, and C would get 1/6 of the total community (1/3 of H's one-half).  In (b), A would receive 1/6, each of N, O, and P, 1/18, and each of R and S, 1/12.  In (c), each grandchild would receive 1/12 of the total community.

    4.  Mother and Father, now deceased, had three children, Arthur, Bill, and Chris.  Arthur died survived by his wife, Peggy, and their two children, Linda and Ken.  Bill is unmarried and childless.  Chris is married to Wendy and they have no children.  Chris died intestate with both community and separate property.  In addition, Chris owned real and personal property of each type.  How would Chris' property be distributed?  Wendy receives all the community property, all separate personal property, and one-half of the separate real property.  Bill receives ¼ of the separate real property and Linda and Ken each receive 1/8 of the separate real property.

 

Guardianship Issues If No Surviving Parent and Minor Children are Left Behind

Guardianship of the Person

A court will institute Guardianship of the Person (physcial custody and care -- as different from custody and care of any minor's assets below) proceedings to determine who, in the best interest of the child, should be awarded physcial custody and control of the minor children.  Ultimately, if no suitable person can be found then the minor children can be assigned to Texas Child Protective Services. 

 

Guardianship of the Estate

A court will institute Guardianship of the Estate (physical custody and care  of any minor's assets) proceedings to determine who, in the best interest of the child, should be awarded physical custody and control of the minor's assets.  


Both Guardianship Proceedings are very expensive, time consuming, and could very well result in your wishes being ignored. 

 

Also with no valid Will, the Court likely will impose Dependent Administration (essentially, the Court has to make every decision for the Estate).  Again, very expensive, time consuming, and could very well result in your wishes being ignored.