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

Posted by Chris Peterson | May 21, 2014 | 0 Comments

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

what happens to property when someone dies without a willIn our last article, we discussed the first few steps to be done when dealing with the estate of a person who died without a valid last will and testament in Texas. In this article, we pick up where we left off and address a surviving spouse's rights regarding the marital homestead and exempt personal property. We'll also begin explaining what the rules say about who gets how much of the estate.

The surviving spouse can stay in the home

Under Texas law, the surviving spouse has the right to continue using the homestead, subject to any purchase-money mortgage, for the remainder of his or her life. The surviving spouse does not have to live in the home and can even rent it out, as long as the surviving spouse doesn't abandon the property. Even though partial ownership of the property may vest in other heirs under the laws of intestate distribution, the other heirs can't force a sale for division or otherwise force the surviving spouse out of the homestead.

In addition, the surviving spouse may be entitled to use or own certain items of personal property to the exclusion of any other heirs, such as a vehicle and household goods and furnishings.

Distinguishing community property and separate property

As we said before, it is important to distinguish community property from separate property, because they are treated differently in an intestate distribution scenario. Remember, both spouses have equal ownership in community property. The death of a spouse does not diminish the surviving spouse's one-half interest in their community property.

An analysis of family structure is also important, because the rules differ for spouses with children from previous marriages and those who only had children together.

Community property distribution

When a married person dies without a will and has surviving children (or their descendents), distribution depends on whether the children or their descendants are also children of the surviving spouse.

If the surviving children are also the children of the surviving spouse, all of the community property passes to the surviving spouse. The surviving spouse already owned one-half of the community property. In this scenario, the surviving spouse will own all of the community property solely.

The surviving spouse must share with stepchildren, if any

In contrast, if any surviving child or descendant of the deceased is not also a child or descendent of the surviving spouse, the entire portion of the deceased spouse's one-half ownership interest in community property passes to the deceased spouse's children or their descendants, subject to any applicable homestead or personal property exemption available to the surviving spouse.

What if the decedent had no children or descendants of children?

If the deceased spouse did not have any children or descendants of children, all of the community property passes to the surviving spouse, if any. If there is no spouse, then by definition, all of the decedent's property is separate property and is distributed according to the rules regarding separate property. We'll talk about those rules in our next article as we continue examining what happens to property when a person dies without a will.

We protect your interests as an heir

Our experienced probate lawyers at Peterson Law Group guide clients through estate litigation and work diligently to protect heirs' rights. Schedule a meeting 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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