Historically, property distribution upon death was done by family members using brute force to physically take what was wanted. In the case of some cultures, such as the Egyptians, possessions were buried with the deceased. In modern times, without a Will, possessions can still be distributed to people and places they did not intend them to go to. Without a Will, the law will create a plan for you. How the law creates a Will is complex and it can have some undesirable effects. Most might assume that if a person dies without children, property simply goes to the other spouse; however, this is not necessarily true. In fact, it depends on whether or not the property is “community property” or “separate property” (see blog post entitled “Who Owns What and Where Does It Go During a Divorce”). The rules are also different if a person is unmarried with children or single. It is necessary to have a Will in place if you want the power to decide how and to whom your property is to be distributed upon death.
Below is a basic summary of how property is distributed when a person dies without a Will:
Married, No Children: If a married person dies without children, the surviving spouse inherits all of the couple’s community property. The deceased person’s separate real property is divided in half. One-half of the separate real property is distributed to the surviving spouse and the other one-half divided between the deceased’s parents. Depending on whether both of the deceased’s parents are living will determine whether the deceased’s siblings will receive a portion of the property. All of the deceased person’s separate personal property is distributed to the surviving spouse.
Married, With Children (Community Property): If a married person dies and has children, then how community property is distributed depends on whether the children resulted from the marriage with the deceased or were from a previous relationship, i.e. step-children. If the children are from the “current” marriage, the surviving spouse will inherit all of the deceased person’s community property. If any of the children are step-children, all of the children, regardless of parentage, will receive, and divide among them equally, one-half of the couple’s community property. The surviving spouse does not inherit any of the community property, but keeps the one-half of community property he or she already owns (again see blog post entitled “Who Owns What and Where Does It Go During a Divorce”).
Married, With Children (Separate Property): To divide the separate property of a married person who had children, there is no difference as to whether children are from the marriage or step-children. The surviving spouse will receive one-third (1/3rd) of the personal separate property of the deceased, with the remaining two-thirds (2/3rds) to be divided evenly among the children. A life estate interest in one-third (1/3rd) of the separate real property is given to the surviving spouse to own while alive; the remaining two-thirds (2/3rds) will be divided evenly among the children. At the surviving spouse’s death the life estate interest in one-third (1/3) of the separate real property previously owned by him/her will be divided evenly among the children.
Unmarried, With Children: If a person dies unmarried with children, the children and their children will inherit all of the deceased’s property.
Unmarried, No Children: If the deceased died without children, then the deceased’s parents will equally inherit the property. If only one parent is alive, the surviving parent will inherit one-half of the property, with the other one-half to be divided evenly among brothers and sisters of the deceased. If both parents are deceased, the entire estate will be split among the brothers and sisters. If family members cannot be found, the estate will go to the State of Texas. How one’s estate will be divided will vary from family to family and, without a Will, the State will decide the proportion of, and to whom, your estate will be distributed. Creating a Will not only eliminates family feuds, but also helps to protect your family’s future for generations to come.
The Takeaway: If you want the power to decide how and to whom your property is distributed upon death, you must have a valid Will in place. This is especially important for people who have children from a prior relationship.
– The Business Team
Scott | Josh | Jeremy
The Allen Firm, PC
181 S. Graham Street | Stephenville, Texas 76401
Ph: 254.965.3185 | Fax: 254.965.6539
The Allen Firm, PC is composed of a team of attorneys located in Stephenville, Texas. Our mission is to improve people’s lives by providing reliable and practical help with their legal matters while operating under our values of honoring people, operating with integrity and striving for excellence. We offer help in forming businesses or companies, estate planning, lawsuits, real estate, probate, oil and gas, collections, agriculture, bankruptcy, family law, and accident and injuries.