Probate Without a Will

My loved one did not leave a will; can I still probate their estate?

Even though having a will makes probate a smoother process, an estate can still be probated if your loved one did not leave a will. The process is a bit lengthier and requires more court time. In Texas, if someone dies without a will and has assets that need to be probated, the laws of intestacy will apply.

Laws of Intestacy

The laws of intestacy define who is entitled to the assets of the estate when a loved one dies without a will, aka their “heirs”. The Texas Estates Code defines who these heirs are; they must (1) be alive or in gestation at the time of the loved one’s death (2) must survive the loved one by 120 hours and (3) fall within the class of heirs that are defined by the intestacy laws.

Who are heirs?

These heirs include (1) surviving spouse (2) biological children and their descendants (3) adopted children (4) biological parents (5) adoptive parents (6) siblings (7) grandparents (8) some other blood relative and (9) collateral relatives/half-bloods, these heirs are people such as aunts, uncles, nieces, half-brother, etc. while they are heirs, they may only take half as much.

Who cannot be heirs?

The Texas Estates Code also names those people that are not considered heirs under section 201.000. These include (1) a parent who abandoned the loved one before or after birth (2) a parent that committed a crime against the loved one (these crimes are listed in Texas Estates Code section 201.062) and (3) a person that caused the loved one’s death.

Who is entitled to what?

This is where the law becomes complicated and detailed. I am going to give you the basic rundown on how the law works, know though, there are further laws and nuisances that can apply in these situations and I will star those so you can be aware. I will try and explain it the simplest way possible but remember you can always give us a call for further explanation.

If the loved one did not have a surviving spouse and:

1. The loved one had children
   1. The children share equally the estate
2. The loved one had no children and both parents are still alive
   • Parents split the estate
3. Only one parent is living
   1. That one parent takes
   2. But if there were siblings that one parent takes ½ and the siblings split the other half
4. No parents of the loved one are living
   • Divided among loved one’s siblings
   • If no siblings, then the laws start to apply to paternal and maternal grandparents and their heirs**

If there is a surviving spouse:

1. If there is a surviving spouse and no living children
   1. The spouse will take all
2. If there is a surviving spouse and living children are both the loved ones and surviving spouses together
   1. The spouse will take all of the community property and 1/3 of the separate property**
   2. The children will share the 2/3 of the separate property **
3. If there is a surviving spouse and the living children are not all both the loved ones and surviving spouses’ biological children:
   1. Surviving spouse ½ the community property**
   2. Non-biological child/children other half**

As I said, these laws are very complicated and hard to explain. What I have listed here is not the in-depth version and there are other types of property that can be devised as well, per the Texas Estates Code. The main purpose of this blog is to show you how important it is to have a will. Without one, it is up to your loved ones to go to court and figure out all of these heirs, what they are entitled to, and how to give them notice. However, if it is too late and your loved did not leave a will, we can certainly help you in the intestate process, just give us a call.

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