It happens over and over again. A wife comes into my office after her husband has passed away and she wants to know how to get everything switched over to her name. She’s heard of Probate and an Executor but she really isn’t sure how the Probate process works. Maybe her husband’s name was on the car, and both their names were on the house. She just wants to keep things simple, remove his name from the deed and transfer the car.
Unfortunately, this is when I have to give her a rude shock: you may not inherit all of your husband’s property.
(Husbands are just as clueless when they come in, but the wives are typically much more proactive on Probate, so I’m using the wife as the example here).
When someone dies without a Last Will and Testament it means they passed away Intestate, and their estate will be distributed according to the Texas Estates Code.
The two big questions in an Intestate Probate proceeding are:
1. What is the Status of the Property?
Property is considered either Separate Property or Community Property. Just because Texas is a community property state, does not mean everything a spouse owns is Community Property. The Status of the property is important because the Texas Estates Code draws two different paths for property depending on if the property is Separate or Community Property.
2. Were there children from a previous marriage or outside the marriage?
This can sometimes be a difficult question to answer but if there are children who are not the children of the two spouses (the deceased spouse and the surviving spouse) then the property will be distributed along a different path.
If the Deceased Spouse had children from a prior marriage or outside the current marriage, then the surviving spouse will one take one-third (1/3) of the personal property, and the remaining two-thirds (2/3) will go to the children. For Separate Real Property (land) the spouse is only entitled to a Life Estate in one-third (1/3) of the property, and all the rest goes to the children.
The actual Texas Estate Code clause on the subject reads:
“Sec. 201.002. SEPARATE ESTATE OF AN INTESTATE. (a) If a person who dies intestate leaves a surviving spouse, the estate, other than a community estate, to which the person had title descends and passes as provided by this section.
(b) If the person has one or more children or a descendant of a child:
(1) the surviving spouse takes one-third of the personal estate;
(2) two-thirds of the personal estate descends to the person’s child or children, and the descendants of a child or children; and
(3) the surviving spouse is entitled to a life estate in one-third of the person’s land, with the remainder descending to the person’s child or children and the descendants of a child or children.”
With the rise of divorces and remarriages, it is becoming more common for couples to have stepchildren and children outside of marriage. Most people don’t realize that having children from a prior marriage changes the Probate distribution of their property. You can avoid this by having a Will prepared and executed, then your estate will go to the beneficiaries you specifically name rather than leaving it up to the laws of Texas. Estate Planning is crucial for everyone, but especially couples that have been married before or have separate property.
A Will, a Trust, Powers of Attorney are all tools in a proper Estate Plan that can prevent a rude shock for the surviving spouse. They are already grieving the loss of their spouse, don’t add to that grief. Be proactive and get an Estate Plan.
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, DTPA claims, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.
*Nothing in this Article is to be considered as the rendering of legal advice for specific cases, or creating an attorney-client relationship, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only, and no warranty or representation is made as to the accuracy or completeness of the information contained herein.