The Intestate Estate—What Happens When There Is No Will?

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Creating a will should be the first step in a comprehensive estate planning process, since it allows you to make sure that your wishes are properly carried out after your death.

A will is a tool that ensures that your personal and financial assets are distributed to the people and organizations you want, and in the manner that you desire. It also allows you to choose someone you trust to settle your affairs, i.e. your “executor.”  The article “What Happens if You Die Without a Will?” from The Street says that the time to have a will prepared typically coincides with the need for a power of attorney and healthcare proxy forms. In this author’s opinion, however….that is too late, because you run the risk of dying with no will at all.

What happens without a will? The legal term for dying without a will is “intestacy.” When estate planning and probate attorneys refer to an “intestate estate,” they’re talking about someone who passed away without a will.

A married person with children who dies “intestate” does their family a great disservice. All property, including real estate, investments and accounts that are jointly owned with the spouse go to the co-owner without needing to go through probate. However, any separately owned property must be distributed through probate. In Texas, that means one-third will go to the surviving spouse, but the remainder will be divided among the children. If the children are minors, the funds will be held in an account only accessible with court approval. What if they family depended heavily on that property? They could be find themselves without sufficient funds to maintain their lifestyle.

A person who is married but has no children or grandchildren and dies without a will may have their separate property divided up between their parents and their surviving spouse, while jointly owned property, accounts and community property go to the surviving spouse.

What about a single person with children? With no will, the state law gives the decedent’s assets to surviving children in equal shares. If an adult child is deceased, their share is split among their own children (the decedent’s grandchildren). However, if the children are minors, the money is subject to court control and supervision.

If someone who is single and has no children dies, the state usually gives their assets to surviving parents. If the parents are not living, the assets will be distributed to the decedent’s siblings, or nephews and nieces, if the siblings have also passed. The state will reference a consanguinity chart—a chart used to help identify relationships of people showing degrees of family relationships by blood or marriage. Assets may pass to distant cousins who have never met or even known of the existence of the decedent.

If there are no living family members, the estate typically goes to the state itself.

When a member of an unmarried couple dies without a will, the surviving partner has no legal rights at all. Only spouses and relatives are recognized by state law. The partner will not inherit anything; assets will pass as if the person was single.

An experienced estate planning attorney can create a will and related documents to ensure your wishes are carried out upon your death. Otherwise, your estate will be distributed according to the state law. You can and should protect yourself and your loved ones with a will.

If you or a loved one needs assistance with elder lawprobate or estate planning issues, do not hesitate to BOOK A CALL using our calendar. We are here to help.

Reference: The Street (Jan. 2, 2023) “What Happens if You Die Without a Will?”