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Part Three – What Happens to Property If Someone Dies Without a Will?

Posted by Chris Peterson | May 23, 2014 | 0 Comments

Part Three – What Happens to Property If Someone Dies Without a Will?

Dying without a willIn our last two articles, we discussed some steps in administering the estate of a person who died without a valid will in Texas, some provisions for the surviving spouse, if any, and the general rules for distributing community property. In this article, we'll begin addressing how separate property in the deceased person's estate is distributed when there is a surviving spouse.

What is separate property?

Separate property fits one of the definitions below. Any property which doesn't fit the definition of separate property is generally considered community property in Texas.

Separate property consists of:

  • Any property acquired by the deceased spouse prior to the marriage
  • Any property acquired by the deceased spouse during the marriage by gift or inheritance
  • Monetary compensation awarded to the deceased spouse pursuant to a legal claim during the marriage, except any portion of the compensation which was for the  loss of future earning capacity

Remember — a community property versus separate property analysis is only applicable if there is a surviving spouse. If there is no spouse, all of the deceased's property is distributed according to the rules of intestate distribution for separate property. (We'll discuss spouse-less distribution in our next article.)

Distinguishing personal property from real property

When it's time to determine who gets the deceased person's separate property, the first step is to distinguish between personal property and real property, because they are treated differently, depending on the deceased person's family structure.

Real property, or real estate, is generally land and anything firmly attached thereto, such as a house. Personal property is everything else, with few exceptions.

Separate personal property is divided

When a person dies without a valid will and leaves a spouse and children behind, the surviving spouse receives one-third of the deceased's separate personal property and the surviving children or their descendants receive two-thirds of the separate personal property. This division is subject to the surviving spouse's homestead and exempt personal property rights, if applicable.

When a person dies childless but has a surviving spouse, all of the separate personal property passes to the spouse.

Separate real property is divided

If the deceased person owned an interest in separate real estate, ownership passes to the deceased's children or their descendants, if any. The surviving spouse gets a life estate in one-third of the real estate, which means he or she can utilize one-third of the property during his or her lifetime. Thereafter, ownership vests in the children.

When a person dies childless but has a surviving spouse, the surviving spouse gets one-half of the separate real property and the other half goes to the deceased person's parents. If there are no surviving parents, then the other half is divided among the deceased person's siblings or their descendents.

If there are no surviving parents, siblings or their descendants, then all separate real estate goes to the surviving spouse.

What if there is no surviving spouse?

Thus far, we've covered property divisions under the laws of intestacy in Texas when the deceased person left a surviving spouse. In our next article, we'll explore what happens to a person's property when there is no surviving spouse. Check back soon to learn more.

Simplifying the probate process

If you need help settling the estate of a person who died owning property in Texas, we can help. 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.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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