I am married, have children, and am living in Texas. If I die without a Will, all of my property goes to my spouse, right? Unfortunately, the answer is not necessarily. If your children are also your spouse’s children, if you have separate real property, your spouse will receive a 1/3 life estate interest in that property, and your children will take the property equally subject to the life estate interest of your spouse. Your other separate personal property will go 1/3 to your spouse, and your children will take the other 2/3 of the property in equal shares. Your
community property, both real and personal, will all go to your spouse.

Your assets with designated beneficiaries will go to the beneficiaries so designated upon your death. If you own property as a joint tenant with someone else, typically your spouse, with joint right of survivorship, that property will go to the survivor upon your death.

Let us now assume you were married previously before your current marriage, and had children from that prior marriage and die without a valid Will. In this situation, your children from your prior marriage will receive equally your 1/2 community property interest in all of your community property owned with your current spouse, and your current spouse will retain his or her 1/2 community property interest in said community property.

If you are single or widowed with no children and die without a Will, your property will go to your parents if they survive you. If only one of your parents survives you, that parent will inherit all of your property if you have no siblings or sibling’s descendants then living. If only one of your parents survives you and you have siblings or sibling’s descendants then living, 1/2 of your property will go to your surviving parent and the other 1/2 will be split equally to your siblings and/or sibling’s descendants.

If you are single or widowed with children and die without a Will, your property will be split equally among your children or their descendants.

If you are married with no children and die without a Will, all of your community property and all of your personal property will go to your spouse. If you also have separate real property, it gets more complicated.

If you die without a Will and it is necessary that your Estate be probated, the proceeding is typically significantly more expensive and time-consuming than a proceeding for the probate of an Estate where there is a valid Will.

The lesson to be learned is that in Texas, when you have a valid Will, you get to decide where your property goes. If you do not have a valid Will, the State of Texas decides for you where your property goes.

–Randall Ashby with Waldron & Schneider.