All About Inheritance Laws in Texas
Texas inheritance laws govern the transfer of assets from an individual’s estate to their beneficiaries and heirs after death. These laws are crucial for several reasons, primarily for ensuring that the deceased person’s assets are distributed according to their wishes and the laws of the state. Understanding these laws is essential for anyone involved in the probate process, from heirs and beneficiaries to executors and administrators.
The fundamental purpose of Texas inheritance laws is to ensure a fair and orderly distribution of both real and personal property after a person’s death. They define who inherits the deceased’s assets, and under what conditions. In the absence of a will, the laws specify the distribution among the deceased’s spouse, children, parents, and siblings . When there is a will, Texas inheritance laws provide the framework for determining whether the will is valid and enforceable in a Texas probate court.
Texas inheritance laws also outline the legal process of probate, which aims to resolve legal and financial matters related to a deceased individual’s estate. Probate generally involves proving the validity of the will, if any, administration of the estate’s assets, payment of estate debts and taxes, and distribution of property to beneficiaries and heirs. The probate process can be complex and differs from one situation to another, and it is not uncommon for inheritance issues to arise. In such cases, the assistance of a knowledgeable lawyer is highly recommended.
How Intestate Succession Works in Texas
Intestate succession refers to the laws that dictate how a deceased person’s estate is administered and how their assets are distributed when there is no will. Simply put, if a person dies without a will, they are said to be "intestate." In Texas, if a person dies without a will, their property passes through the laws of intestate succession. These laws essentially decide who the deceased person was closest to at the time of their death. There are two distinct parts of intestate succession in Texas: decedent’s separate property and community property.
Separate Property: Most people have, at a minimum, some separate property that is owned prior to any marriage. This property is not supposed to be subject to division with the spouse upon death.
Community Property: This is property that exists during a marriage and is intended to be jointly owned by both spouses. Community property is typically divided equally among the surviving spouse and decedent’s children.
The distribution of a person’s assets is based on 5 rules for succession of their estate in Texas. Anyone who would inherit from the decedent is referred to as an "heir-at-law," and a person being adopted is treated as the child of the adoptive parents. This means that adopted children are entitled to inherit from the adoptive parents’ estate in the same way biological children are. However, stepchildren are not entitled to inherit unless they were adopted. The spouse of a decedent can claim the decedent’s separate property and half of the community property. This only applies when the parties are legally married at the time of the decedent’s death. Common law spouses do not have the same rights as a wife or husband who was legally married to the deceased. If your spouse dies, all of his or her interests in the community estate are deemed yours, through a legal right of survivorship. However, you cannot take under the durability of law to obtain your spouse’s separate property. Separate property is owned solely by one spouse and cannot be transferred to the other spouse through the durability of law unless there is a legal document executed by the spouse granting that spouse’s interests to the other spouse.
The Purpose of a Will in Texas
The role of a will in Texas is to essentially determine how inheritance will be distributed. Inheritance distribution is also known as "succession". However, without a will, succession can sometimes be hard to determine. Without a will, the rules of "intestacy" are used for inheritance in Texas. These are the rules that apply when a person dies without a will or their will is deemed invalid. Intestacy rules in Texas for succession can be very strange and may not be what a person wishes in terms of who receives their property.
The rules of intestacy in Texas state that: if you do not have a will, your spouse receives half of your property and your children divide the other half. The rules of intestacy also apply if your spouse has passed before you and you have no children. If you have no spouse and have children, then your property is divided between each child equally. If your spouse has passed before you and you still have children, then your property is divided to your children and grandchildren equally. This can get confusing and becomes more severe the more family members there are. When you write a will, you can specify distribution and ensure that your wishes are followed.
In addition to determining distribution, a will can also help appoint an executor to your estate, guardianship for children and establish trusts. You should always discuss drafting a will with an estate planning or probate attorney.
Inheritance Through Community Property
In Texas, a surviving spouse does not automatically inherit straight from her spouse. Texas’ community property laws dictate how property owned by married persons is owned.
Community property consists of property (whether real or personal) that either spouse acquires during the marriage, with a few exceptions. Property that one spouse acquired before the marriage is separate property. Property acquired during the marriage that was a gift to one spouse from another non-spouse is also separate property. Also, property acquired during the marriage in exchange for separate property is separate property if the spouse exchanging the separate property has not elected to treat the acquired property as community property.
Community property is typically owned equally by the spouses. During life, either spouse may dispose of it without needing the consent of the other spouse (the state strongly encourages spouses to agree to do this, probably so it will not have to sort out all the different ways they might have agreed to handle this). Community property constitutes a 50% interest in the property to each spouse. However, if spouses commingle any separate property as community property, it becomes community property until the spouses agree otherwise. As a result, at divorce, the division of community property can become very complicated. As mentioned above, there are ways to avoid dividing community property, but it has to be agreed to while both spouses are alive.
At death, if a spouse dies leaving a husband or wife, the community property belongs to the surviving spouse. However, it belongs to both spouses’ successors unless the deceased spouse’s will says otherwise. The deceased spouse’s will can leave the spouse’s half of the community property completely to someone other than the surviving spouse. If this occurs, the decedent’s half of the community property belongs to the decedent’s estate. This situation sometimes gives rise to protracted litigation involving wills written by spouses who were separated or estranged from the other spouse.
This simple division of community property is complicated if the decedent died without a valid will (i.e., died intestate). Because that person’s 50% interest belonged to that person only while he or she lived, it goes to the person’s heirs after his or her death. In Texas, a decedent’s heirs include his or her biological children. Likewise, community property with a monetary value goes through the estate.
The Texas Probate Process
The probate process in Texas generally commences with the filing of an application or petition to either probate a will, if one exists, or declare heirs. This application is filed in the county in which the decedent resided at the time of death. The decedent must have Died without a will, or if he had a will, the will must be admitted to probate. The purpose of the proceeding is to give notice to those people that have an interest, either as an heir or otherwise, in being appointed as Independent Executor, or if none of the persons named in the will is an independent executor, the judge will appoint someone to be in charge of the estate independently. In the event there is an executor named under the will, then that person can petition the court for appropriate letters testamentary. The court will hear the application, after giving proper notice, and swear in the independent executor and grant either letters testamentary or letters to administer, depending on whether or not the will is offered for probate. Then, the Court will require an inventory and appraisement to be filed within 90 days. A notice to creditors must be published within 30 days of the appointment. The independent executor has 6 months within which to pay claims, either in full or in part, and once the claims have been paid, the independent executor can file an application for the distribution of the property and close the estate. If there are any disputes concerning the validity of the will, the amount of a claim or the heirs of the decedent, these issues are generally resolved by the filing of an application to require an oath of heirship. Once that question is resolved, the Court can then proceed to distribute the assets of the estate.
Surviving Spouses & Children
Upon the passing of a loved one, certain groups are afforded rights that allow them to receive an inheritance even if no Will is present. In Texas, these groups include the Decedent’s surviving spouse and children.
Texas law recognizes the fiduciary duty owed by a surviving spouse to a Decedent. This means that a surviving spouse owes a duty to account for all funds and property in their possession that belonged to the Decedent. Upon the request of any interested party an accounting may be required of the surviving spouse by the Court. An interested party includes any creditor or heir of the Decedent. A surviving spouse may be required to compensate the decedent’s estate for the value of property that they failed to account for to an interested party.
If no Will is found, the Decedent’s surviving spouse is entitled to receive all community property plus an elective share in one-half of the Decedent’s separate property. Community property consists of all property acquired by either spouse during the marriage, except separate property identified as separate by the couple or classified as separate by the Family Code. This property owned by one spouse at the time of marriage is considered separate property unless otherwise determined during the marriage. Separate property includes: property acquired during the marriage by gift, devise or descent; personal injury recoveries for pain and suffering, mental anguish, loss of consortium, etc. up to the date of death of the spouse; personal injury settlements for lost earning capacity, medical expenses or funeral costs take places after the death of the spouse; services furnished by the other spouse during the marriage for which the community estate has been reimbursed; the recovery for work done after the date of marriage on real estate that is separate property before the marriage; and, retirement benefits that accrued during the marriage .
The elective share is a form of protection for the surviving spouse that enables them to claim a share of the decedent’s separate property. This amount is different from the community property that belongs to the couple. The elective share allows a surviving spouse to elect to receive one-third of the rest of the Decedent’s estate made up of separate property. The surviving spouse must make this election within six months of the appointment of a Personal Representative.
A surviving spouse who gains the elective share is also required to give up her common law or elective rights in community property that she would otherwise be allowed to take. Upon the death of a common law spouse, their children are entitled to an equal share of the community property. A woman married in a common-law marriage has the same rights as a woman married by ceremonial marriage. This means that the surviving spouse may receive the entire community property, plus an elective share and any personal property that they may inherit separately. If a spouse chooses to take the common law share, they are not allowed to claim any form of separate property.
In Texas, the children of the decedent may be entitled to an inheritance even if the spouse contests their right to inheritance or takes an elective share of the Decedent’s assets. An adopted child inherits the same right of inheritance as naturally born children provided that the procedure outlined in the Texas Family Code is followed. Step children do not inherit from a spouse but can inherit from a biologic parent if that parent dies.
Disputes and Contested Wills
Texas law requires the admission of a will to probate in order for its directives to be given effect. Such necessitates either the testator having died with a will or intestate without a will (sometimes referred to as testate and intestate) leaving a legal representative to obtain a court order within four years of death establishing the validity of the will. Legal proceedings generally commence with the filing of an application that accuses or disavows the validity of a will and sets forth proofs from anyone who has custody of such a will. Actions are commenced and pursued in county probate courts. The Texas Estates Code governs contested matters, and requires that notice of administration be given to anyone who is an interested party and may inherit an intestate estate. If a will is in custody of a known custodian, notice must be given within 14 days after the application is filed. If a will is a lost or stolen instrument, notice must be given to the heir that would otherwise inherit the intestate estate. In either case, notice must be given not later than one month after the application is filed. In the event of a will contest, third parties can become parties to an action by intervention within 90 days of the issuance of letters testamentary or before the will is produced in a hearing on the validity of the will, whichever time period expires last. However, any person whose rights may be affected by proceedings on the probate of the will must be notified, even a potential heir who knows of the existence of a will that disposes of the estate. The Texas Estates Code provides for various approaches to the establishment of the genuineness of a will, and the determination of the testamentary disposition of a decedent’s estate. When a contest is at issue, the ultimate question is whether the document will hold up to probate or be declared to be invalid. When the validity of a will cannot be established by the various approaches permitted to the court, the burden shifts to the party claiming an inheritance to prove the elements required for such claim or defense. The party casting doubt on a will’s validity must prove that the will was not duly executed, that at the time of execution the testator lacked capacity, and that he or she was subject to undue influence by others to make the will in the form and manner in which it was presented. A determination of the validity or invalidity of a will turns on the facts proven in each case. It can be imperative to obtaining the best result in any challenged will to answer first whether or not a will contest should be vigorously waged.
Lawyers & Estate Planning
It is also important to know that in order to minimize the chance of your assets being transferred to the state, a will or estate plan will help to ensure that you control who your assets are distributed to. You will need a skilled legal professional to help you draft one, because if any part of your will or estate plan is interpreted to be against Texas law, the court will invalidate all of it.
It is incredibly important to work with a legal professional when drafting any form of estate plan, because it is easy to hide intent within vague legal language. This means in many cases that the person you intended to benefit from your will might not because some part of the will isn’t clear enough to be enforced as intended. A qualified estate lawyer will help you avoid these pitfalls.
If you want to make sure that your estate plan fits with Texas inheritance law, you must work with a legal professional to ensure all of your documents are prepared correctly. If you don’t have one yet, here are a few qualities to look for:
Your Texas Inheritance Questions Answered
What types of property will be subject to the laws of inheritance?
All property owned by both the deceased and living at the time of death will be subject to these laws. Property that was owned solely by the deceased and passed directly to an heir will be excluded. Living relatives will not have any claim to possessions that belonged to the deceased prior to the marriage.
Do I have to honor a will that is not witnessed?
A verbal will can be accepted for probate as long as it meets the requirements of witnesses. If there is a written document that was not witnessed, an heir must provide proof showing intent about the property in the will. The witness requirements differ for holographic and oral wills.
If a beneficiary dies shortly after the deceased, will they still receive the inheritance?
An heir must live at least 120 hours after the death of the deceased in order to receive their portion of the estate. Otherwise, their share will go to their heirs if they are living , or to the executor of the deceased’s estate.
What happens if a beneficiary files for divorce before receiving their inheritance?
If a beneficiary files for divorce, then the court will take the steps necessary to ensure that the property was given to the correct person. If the deceased changed their will, then the current will would override the former one.
What is the law on adoption in regards to inheritance?
If an adopted child becomes an heir, all other potential heirs in the family will be removed from consideration. However, a biological child of a parent that has remarried will not be excluded from an inheritance. Such a child can still be included in the distribution of the estate if they are named in the will.
Do I need a lawyer when contesting a will?
To challenge a will, hiring a probate lawyer is necessary. They will have the knowledge required to file the petition on your behalf and navigate the process. Also, they can give sound advice to their clients on how best to proceed in order to maximize their compensation.