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Probably the most common complicating issue in probate is intestacy. Intestacy is never a good situation. Literally, the deceased did not prepare a Will and has left the survivors to deal with the situation without any instructions. Statistics provide that from 70 to 80 percent of all people who need a Will, do not have one. But, in the case of intestacy, the State of Texas has thoughtfully written a Will for you. Hope you like it!
In situations where the deceased fails to make a will, the State of Texas has statutes that direct who receives distributions of separate and community, real and personal property from the deceased. The Texas Probate Code provides that if the intestate decedent was not married at the time of death, his real and personal property pass to his descendants. If there are no descendants of this unmarried decedent, then it passes to his father and mother in equal shares. If either parent, or both, are not surviving, then their share passes to the decedent's brothers and sisters and to their descendants. We'll stop the explanation there for unmarried intestate decedents, but should it go further, we would need to talk about moieties. The Texas Probate Code also provides that if the intestate decedent was married and had a child, then the surviving spouse takes one-third of the personal estate with the remainder to the child, or children and their descendants. The surviving spouse is also entitled to a life estate in one-third of the real property of the deceased with the remainder to the child, or children and their descendants. If the married intestate decedent had no children, then the surviving spouse is entitled to the entire personal estate and to one-half of the real property of the deceased with the other half going to surviving parents, or brothers and sisters, or their descendants, or if none, then to the surviving spouse. Now, if the property of the deceased is community property, and many times that is the only type of property that person might own, then the Texas Probate Code provides a different result. In those situations where the married intestate deceased had no children or all the children are from the surviving spouse, then the surviving spouse is entitled to all the community estate. However, should the married intestate decedent have children from another person than the surviving spouse, then the surviving spouse only receives their own half of the community and the decedent's children or descendants. If these statutory provisions are not to your liking, I strongly suggest you prepare a Will!!! |
