What Happens to Property If Someone Dies Without a Will?
When a person dies without a will in Texas, his or her property is distributed according to state laws of intestacy. The word intestacy refers to the decedent being intestate at the time of death, or not having a valid last will and testament. In this series, we'll discuss intestate distribution and how various types of property are characterized under Texas law.
First things first — opening the estate
Before any property can be distributed, an estate must be opened in the probate court of the county where the decedent resided at the time of death or in a county where the decedent owned real estate. A person who is willing to take on the job of personal representative of the estate of the decedent must prepare and file a petition for letters of administration to begin the process.
Inventory real estate and personal property
One of the personal representative's first tasks is to identify and locate all real estate and personal property owned by the decedent at the time of death. This property makes up the estate of the decedent. If the decedent was married, the personal representative needs to distinguish community property from separate property.
Identify separate and community property
In Texas, community property is defined by the exclusion of separate property. In other words, everything a spouse owns that does not meet the definition of separate property is, by default, community property. This is important, because the laws of intestate distribution treat community and separate property differently.
Property is considered separate property in any of these circumstances:
- The property was owned by the decedent before marriage
- The property was acquired during the marriage by gift or inheritance
- The property is damages awarded during the marriage from a personal injury lawsuit, except for damages awarded for loss of future earning capacity
Locate potential heirs
The personal representative also has to identify and locate potential heirs, which may include distant relatives depending on the decedent's family structure. The probate court may appoint one or more guardians ad litem to represent and protect the best interests of minor children or unknown heirs throughout the estate administration process, particularly if children are expected to receive a direct distribution of property,
In upcoming articles, we will discuss the distribution of separate and community real estate and personal property and a surviving spouse's rights regarding the homestead and exempt personal property. Check back soon to learn more.
Let us help you navigate the probate process
In addition to developing comprehensive estate plans, our experienced probate litigation attorneys at Peterson Law Group guide clients through probate litigation and work to protect heirs' rights. Make an appointment to discuss your situation with a Bryan, Texas probate lawyer by calling 979-703-7014 or 936-337-4681, or visit us online to request a meeting.