Full question:
I am the 67 yr. old dau. of my 91 year old mother. My mother has lived with my husband and me for the last 10 years (she is widowed). She and my step-dad had wills drawn up about 15 years ago. After the loss of her husband and a move from IL to TX, the will or wills (?) were lost. I called the lawyer who drew them up but she said she did not have a copy. I know this is FOOLISH, but I cannot bring myself ask my Mom to have another drawn up. All her assets are in both our names. My husband and I both have our own wills. When and if she passes away before I do, how will these assets be handled? Will I be the automatic benefactor?
- Category: Wills and Estates
- Subcategory: Probate
- Date:
- State: Texas
Answer:
The answer will depend on whether the assets are transfer on death assets, or joint assets with a right of survivorship. Such assets go to the named beneficiary outside the probate process. If there is no valid will, the other assets will be distributed according to state laws of intestacy. If it is a survivorship account, or transfer on death account, it passes outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs
When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. The court will issue letters of administration to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will.
In Texas, if someone dies without a Will, he or she is said to have died intestate. When someone dies intestate, Texas law lays out how the estate will be distributed in the Texas Probate Code. Under those provisions, the law draws a distinction between separate property and community property. The Probate Code defines separate property as any property owned by the deceased prior to married and any property given to the deceased during their marriage or acquired by them as an inheritance from someone else. The Probate Code defines community property as all property acquired or accumulated during the marriage, other than property acquired by gift or inheritance, and Texas law requires different divisions of separate property than community property.
It is Chapter II of the Texas Probate Code that governs what happens when a person dies without a valid will or dies with a valid will which does not encompass all of the person’s probate estate. When this happens, the person’s probate property which is not covered by a valid will is distributed through intestate succession. A person may die totally intestate, that is, intestate as to the person, if the person did not leave any type of valid will. A person may also die partially intestate, that is, intestate as to property, if the person’s valid will fails to dispose of all of the person’s probate estate.
When a married person dies intestate (without a will), the distribution of the community property is governed by Probate Code § 45. Real and personal property are treated the same.
1. If No Surviving Descendants
If the married intestate has no surviving descendants, then all community property is now owned by the surviving spouse. The surviving spouse (1) retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death and (2) inherits the deceased spouse’s one-half of the community.
2. If Surviving Children or Their Descendants
Community property is distributed as follows if the married intestate has at least one surviving child or other descendant.
a. No Non-Spousal Descendants
If all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half. Note that for spouses dying before September 1, 1993, the deceased spouse’s one-half of the community property was not inherited by the surviving spouse. Instead, the deceased spouse’s share passed to the deceased spouse’s descendants.
b. Non-Spousal Descendants
If any of the deceased spouse’s surviving descendants are not also descendants of the surviving spouse, then the community property is divided. The surviving spouse retains one-half of the community property, that is, the one-half the surviving spouse already owned by virtue of it being community property. The descendants of the deceased spouse inherit the deceased spouse’s one-half of the community property. All of the deceased spouse’s descendants are treated as a group regardless of whether the other parent is or is not the surviving spouse.
C. Distribution of Separate Property of Married Intestate
Unlike most states, Texas in Probate Code § 38(b) has retained a vestige of the common law distinction between the descent of real property and the distribution of personal property.
1. Surviving Descendants
a. Personal Property
The surviving spouse receives one-third of the deceased spouse’s separate personal property with the remaining two-thirds passing to the children or their descendants. These interests are outright.
b. Real Property
The surviving spouse receives a life estate in one-third of the deceased spouse’s separate real property. The rest of the property, that is, the outright interest in two-thirds of the separate real property and the remainder interest following the surviving spouse’s life estate passes to the deceased spouse’s children or their descendants.
2. No Surviving Descendants
a. Personal Property
If there are no surviving descendants, all separate personal property passes to the surviving spouse.
b. Real Property
(1) Surviving Parents, Siblings, or Descendants of Siblings
If there are no surviving descendants but there are surviving parents, siblings, or descendants of siblings, the surviving spouse inherits one-half of the separate real property outright with the remaining one-half passing to the parents, siblings, and descendants of siblings as if the intestate died without a surviving spouse (that is, this one-half passes using the same scheme as for individual property).
(2) No Surviving Parents, Siblings, or Descendants of Siblings
If the intestate has no surviving descendants, parents, siblings, or descendants of siblings, the surviving spouse inherits all of the separate real property.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
