Texas Intestate Succession: Married With Children

What happens to my property if I die without a will while married, and I also have children or other living descendants?

In Texas, the probate code makes different assumptions about how you would have wanted to distribute your community property versus your separate property, and then makes further assumptions based on whether your surviving spouse is also the parent of all of your children.  

For your separate personal property, your surviving spouse will receive one-third, and your surviving children (or their descendants) will share equally in the remaining two-thirds.

If you owned separate real property (real estate that was not part of the community property estate with your surviving spouse) – your surviving spouse will only inherit a one-third life estate in that property, and your surviving children (or their descendants) will take the remaining two-thirds.  Essentially, your surviving spouse will have the right to use and occupy her one-third share in that property only during her lifetime; once she dies, that “life estate” will go away, and your surviving children (or their descendants) will own all of your separate real property.

For your one-half share of any community property, your surviving spouse would inherit all of your share but only if she is also the parent of all of your surviving children (or the descendants of any deceased children).  If you had any children with someone other than your surviving spouse, she will inherit none of your one-half interest in the community property.  Instead, all of your community property interest would be divided equally among your surviving children (or their descendants).   However, your surviving spouse will always retain her one-half share in the community property estate.  

Since this situation only happens if you die without a valid will, you can avoid these results by simply making a will.  

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt, cindy@lpvlaw.com

Texas Intestate Succession: Married Without Children

What happens to my property if I die without a will while married, and I have no children or other living descendants?

In Texas, the probate code assumes that you would want your surviving spouse to inherit all of your one-half interest in your community property, as well as all of your separate personal property.

If you owned any separate real property, though – in other words, you owned real estate that was not part of the community property estate with your surviving spouse – Texas law assumes that you would want to keep some of that real property “in the family.”   

WARNING: THIS GETS COMPLICATED.  

Here’s how the Texas probate court will divide your separate real property:

If you are survived by your spouse and both of your parents (natural or adopted, but not step-parents), your surviving spouse will inherit one-half and each of your parents would inherit one-fourth;

If you are survived by your spouse and only one of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half and your surviving parent will inherit one-half;

If you are survived by your spouse and only one of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, your surviving parent will inherit one-fourth, and any living siblings (or their descendants) will split the other one-fourth into equal shares;

If you are survived by your spouse, but neither of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, and any living siblings (or their descendants) will split the other one-half into equal shares; or

If you are survived by your spouse, but neither of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit all of your separate real property.

Since this situation only happens if you die without a valid will, you can avoid all of that convoluted analysis by simply making a will, which we highly recommend to everyone.

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt

What Happens to My Property if I Die Without a Will in Texas?

If you die without a will, or if your will did not distribute all of your property, or if the probate court finds that your will is not valid, you are considered to be “intestate.”  Texas has adopted a complex system of statutes that determine what happens to your property if you are intestate.

First, the probate court must determine whether you were married and if you had any children or other living heirs at the time of your death.  There is a significant difference in how your property will be treated if you died while:

1.      Married without children;

2.      Married with children or other descendants and:

a.       All children are also children of your surviving spouse; or

b.      Some or all children are not also children of your surviving spouse;

3.      Unmarried with children or other descendants; or

4.      Unmarried with no children or other descendants.

Each of these situations can become complex, so they will be discussed in separate blog entries.

By: Cynthia W. Veidt,

Texas: Does My Will Have To Be Written?

I’m going to have to give y’all the dreaded lawyer answer to this question: “It depends.”

Texas generally requires that every will be in writing – whether typed or in the Testator’s handwriting, or a mixture of both – in order to be valid for purposes of probate.

But Texas used to be a frontier state, where folks may not have learned to read or write, and not everyone had handy access to paper, pen and ink. So Texas does recognize an oral will (also called a “nuncupative will”) as valid and enforceable if, and only if:

1 - It is spoken “in extremis” – in other words, the person making the oral will (the “testator”) is on her deathbed during her last sickness and has no time, ability or opportunity to make a written will; and

2 - It is spoken to at least three witnesses who are over the age of 14 and who are not beneficiaries under the will.

An oral will can only dispose of the testator’s personal property – a disposition of the testator’s real estate / real property must always be in writing.  

And proving the terms of an oral will can be very difficult and very time-consuming (read, expensive) because they are strongly disfavored, even under Texas law.  In other words, the probate court will not make any presumptions to find the existence of a valid oral will.

For these reasons, it is highly recommended that every will should be written.

By: Cynthia W. Veidt, Attorney

What is a “Holographic” Will in Texas?

No, this blog entry is not about a will written by a hologram.  Sorry, Tupac!

A holographic will is a will that is written entirely in the handwriting of the person making the will (the “testator”).  

And “entirely” means exactly that – there can be absolutely nothing printed out (say, from something you found on the internet or in a form book) where blanks are filled in by the testator in his handwriting.  It cannot be something that another person prepared for the Testator to sign.

To be valid in Texas, a holographic will must still be signed by the Testator (who must be a legal adult) and executed with “testamentary intent” – in other words, the document must reflect that the Testator is of sound mind and intends for that document to create a disposition of his property that will take effect only after his death.  

However, unlike a typical written will, you do not need at least two witnesses for the holographic will to be considered valid and enforceable in Texas.

By: Cynthia W. Veidt (Austin Attorney)

What are the Requirements for a Valid Texas Will?

In general, to be valid and enforceable in Texas, a will must be:

- Written;

- Signed by the person making it (the “Testator”) who must be a legal adult;

- Executed with “testamentary intent” – in other words, the document must reflect that the Testator is of sound mind and intends for that document to create a disposition of her property that will take effect only after her death;

- Signed by at least two witnesses who must be over the age of 14 and not beneficiaries in any way under the will; and

- Signed by the witnesses in front of the Testator.

The Testator, by the way, does not have to sign the will in front of the witnesses, and the witnesses do not need to both sign at the same time.  The will does NOT need to be notarized in order to be valid, although signing it before a notary can make the will “self-proved” for future purposes and is strongly recommended.

Sometimes, the will can be entirely handwritten by the Testator and be valid even without any witnesses, although caution should be made since this exception is very limited.  See our blog post about a “holographic will.” 

Texas also recognizes a very, very limited exception for a valid “oral” (unwritten) will.  See our blog post about an “oral will.”

By: Cynthia W. Veidt

Probating an Estate Without Administration in Texas: The Small Estate Affidavit

What if your relative died without a will, but her assets are not very complicated, and you’d rather not spend a lot of money or time going through probate?

In Texas, you may be able to use a special form of probate. In order to qualify, the following must be true:

- At least 30 days have elapsed since the date of death;

- The deceased died without a will;

- The total gross value of the deceased’s property/assets is $50,000 or less (not including the deceased’s homestead or certain exempt property); and

- The only real property owned by the deceased was her homestead.

In this context, “exempt property” typically means personal property worth $30,000 or less, so the deceased’s separate property and one-half share of any community property must not exceed the $50,000 limit. Several other conditions apply, but if the foregoing is true, you may be able to avoid formal probate administration through the procedure known as a Small Estate Affidavit.

The affidavit must comply with Section 137 of the Texas Probate Code.  The probate court will review the affidavit and, if it is approved, will enter an Order – usually without a hearing – approving the Small Estate Affidavit, which is then recorded as an official public record. Once approved and records, the Small Estate Affidavit serves to transfer ownership of the deceased’s assets to the persons identified as distributes in the affidavit. 

Like the Texas Muniment of Title procedure, the court does not appoint anyone to act as an executor or other representative of the deceased’s estate.  However, because the court’s order lists specific distributees who will receive the deceased’s property, most stock brokerage firms, banks, and similar companies appear to recognize the validity of this more simplified probate procedure. 

By: Cynthia W. Veidt

Probating an Estate Without Administration in Texas: The Muniment of Title Procedure

What if your relative in Texas died with a will, but her assets are not very complicated, her will is clear about who should receive each asset, and you’d rather not spend a lot of money or time going through probate?

In Texas, you may be able to use a special, simplified form of probate. In order to qualify, the following must be true:

The deceased had a valid written will;

That will had not been revoked;

The only debts owed by the deceased are secured by liens on real estate; and

Four years have not passed since the date of death.

A few other conditions may apply, but if the foregoing is true, you may be able to seek an order from the Texas probate court (following a brief hearing) admitting the will to probate as a “muniment of title.” No one will be appointed to act as the executor or other representative of the deceased’s estate. Instead, the will itself becomes an official public record of Texas that acts as the required instrument to transfer title and ownership from the deceased to the persons named in her will.

You should be cautious, however, when attempting to use this simplified Texas procedure. Many stock brokerage firms, banks, life insurance companies and title companies in other states are often unfamiliar with the Texas muniment of title procedure, and they sometimes refuse to recognize this process as a valid method of transfer.

If your relative had investment/retirement accounts or similar assets that did not have valid beneficiary designations, you should check with the companies holding or managing these assets to determine whether they will accept an order probating the will as a muniment of title before attempting to use this procedure.

By: Austin Attorney Cynthia W. Veidt

Who Cannot Become the Personal Representative of an Estate?

Texas law specifically excludes the following persons from qualifying to serve as the personal representative (executor or administrator) of a deceased’s probate estate:

a) An incapacitated person (someone who is mentally or physically unable to handle his or her own affairs);

b) A convicted felon, unless such person has been pardoned, or his or her civil rights have been restored by a court;

c) A non-resident of the State of Texas, unless he or she has appointed a Texas resident as an “agent” to accept service of process in all actions or proceedings with respect to the estate;

d) A corporation not authorized to act as a fiduciary in the State of Texas; or

e) Any person the Court finds to be “unsuitable”. 

In addition, if the will designates the deceased’s former spouse to serve as personal representative of the estate and the marriage was subsequently dissolved by divorce, annulment or judicial declaration that the marriage was void, that former spouse cannot be appointed as personal representative of the estate except under very unusual circumstances. 

Article by Cynthia W. Veidt, Attorney