Before You File an Application to Probate a Will in Texas

Carefully review the Will and any related documents before you attempt to file any type of application for probate of the Will. What you find can substantially impact the type of probate proceeding necessary in your specific circumstances, the type of notice you must give and to whom, as well as the type of evidence you will need to offer at any hearing on your application.

Some key things you should check:

• Was the Will properly executed by the deceased and at least two witnesses?
• Is there a self-proving affidavit attached to the Will, signed by the deceased and at least two witnesses in front of a notary? 
• Does the language of the self-proving affidavit substantially comply with the statutory form set out in Section 59 of the Texas Probate Code? 
• Have you located every Codicil that amended or altered the Will (in whole or in part)? 
• Was each Codicil properly executed by the deceased and at least two witnesses?  
• Is there a self-proving affidavit attached to each Codicil?  
• Is the Will (and each Codicil) an original document or a photocopy? 
• Are you the person named as the first executor in the Will? 
• Does the Will contain a provision stating that the executor may serve “independently” of the court? (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a provision stating that the executor may serve “without bond?” (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a “residuary clause” or other language that disposes of all of the decedent’s non-probate property?

If the answer to any of these questions is “No,” there will be a few extra steps to take as part of the probate process in your situation. You should seek advice from a probate lawyer to help you determine your next steps.

By: Cynthia W. Veidt

Texas Intestate Succession: Not Married (With and Without Children)

What happens to my property if I die without a will while unmarried?  

The answer depends on whether you have any surviving children or other living descendants.

In Texas, if you are not married when you die without a will, but you have living children (or their descendants), all of your property is divided equally among your living children (or their descendants).

However, if you are not married and had no surviving children or other descendants when you die, the Texas probate code will attempt to keep your property “in the family” by looking for your nearest blood relative(s).  In general,

• If you are survived by both of your parents (natural or adopted, but not step-parents), your mother will inherit one-half and your father will inherit the other one-half;

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

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

•  If you are survived by neither of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), any living siblings (or their descendants) will split your property into equal shares; or

•  If you are survived by neither of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your property is dividing into two halves.  One half will go to any living paternal kin – in other words, any living relatives of your father, starting at your grandparent’s generation and looking for any of their descendants – and the other half would go to your maternal relatives, starting at your grandparent’s generation and looking for any of their descendants.  The Texas courts will look back as many generations as necessary until they find a living blood relative. 

So, that email about your great-uncle’s cousin in South Africa that you’ve never heard about before, the one who left you a multi-million dollar estate?  Yeah, still not likely to be true.  Always get some independent confirmation about these matters before you send money or give out personal identifying information. 

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.  We highly recommend that everyone have a will for this reason.

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

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