What Happens When Someone Passes Without A Will

Updated: Apr 3, 2019

It is not something that anyone likes to think about, but unfortunately death is inevitable. When someone passes, and they still have probate property there will be a need for a probate. If a person has a Will, then the Will controls the distribution of the estate assets. However, if someone dies with out a Will, then they have died intestate. When someone dies intestate, instead of a Will controlling the distribution of the estate property, a statute controls the distribution of the estate. This statute can be found in Chapter 201 of the Texas Estates Code.


When an estate is controlled by the intestacy statute, the distribution depends on if the deceased person was married at the time of their death, and what other family members were alive at the time of their death. For example, if a person is married with children, from that marriage, at the time of their death; then all the community property (property acquired during the marriage, unless it was a gift, by devisee, or descent) goes to the surviving spouse, the separate personal property goes 2/3 to the children and 1/3 to the surviving spouse. If there is any separate real property, then the children take it all, subject to a 1/3 life estate of the surviving spouse.


The distribution of property of a deceased person, who dies without a will can depend on a number of factors, and the above example is one of the simplest distributions of the property. It can get significantly more complicated if there are children of prior marriages, no spouse or children, or if there are no close family members of the deceased around to claim their share. Please feel free to schedule your initial consultation with us today if you have a Probate matter.


Byron C. Winborne

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