When someone dies in the state of Texas, their property is disposed of under the state's estate laws. In Texas, as in all states, the laws and procedures for probating the estate are different depending on whether or not the deceased left a valid will.
Those who draw up a valid will before they die have the opportunity to specify who will get the various assets and properties they own at death. Those who die without a valid will forgo this opportunity. In that case, Texas intestacy laws determine which close family members will be heirs.
Anyone living in Texas should become familiar with the state's laws about inheritance. This will assist them with their estate planning.
Texas Estate Laws
The law relating to inheritance is termed estate law, because all of the money and property an individual owns when they die become part of their probate estate. Texas estate laws specify how estate property is determined, how a person's estate debts are paid, and how and when remaining assets are transferred to the deceased's beneficiaries or heirs.
Generally, all but the smallest estates in Texas must pass through a judicially supervised proceeding termed probate, but estates with assets of $75,000 or less need not go to probate. Instead, heirs file a small estate affidavit in the county court that has jurisdiction of the deceased after 30 days from the date of death, and the court disperses the property.
Threshold for Probate Procedure
If the entire estate has assets of over $75,000, a probate proceeding must be opened. This is a judicially supervised procedure in which all issues about wills, inheritance and property ownership are resolved.
The probate judge in Texas reviews and adjudicates all issues of a decedent's estate. The rules and procedures for probate are different depending on whether or not the person who died had prepared and left behind a valid legal will or whether they died intestate.
Probate Property in Texas
When a person dies in Texas, all of their probate property becomes part of the probate estate, whether or not they left a valid will. As noted above, the probate procedure is different depending on whether there is a will, but, in both cases, the probate property is all that is at issue. This generally includes all of the cash, bank accounts, retirement accounts, real estate and personal property owned by the deceased.
Note that a married person’s property in Texas can be community property owned jointly with their spouse, or it can be separate property, owned individually by one spouse. Generally, all assets earned or purchased with earnings during a marriage belong jointly to the two spouses and are termed community property.
Inherited or gifted property during a marriage, as well as property owned before marriage, is the separate property of one spouse. In Texas, probate property includes assets that the deceased owned by themselves, that is, their separate property, as well as half of the community property.
Non-Probate Property in Texas
Assets the deceased owned jointly with the right of survivorship pass directly to the survivors. For example, if assets are held in joint tenancy with the right of survivorship, the property passes directly to the survivor after one owner dies.
Similarly, financial accounts or insurance policies that have a named beneficiary, like life insurance policies and payable-on-death (POD) investment or bank accounts, pass directly to the named beneficiary when the person dies. This happens automatically and outside of probate. The same is true of property transferred to a living trust.
Other important non-probate assets in Texas include:
- Life insurance: Generally, the person purchasing a life insurance policy names a beneficiary for that policy. That beneficiary, if living, will contact the insurance company directly about receiving the benefits. If the beneficiary has died, the proceeds become a part of their own probate estate.
- Bank accounts: Texas allows individuals to use a payable-on-death form that is associated with a financial account. If this has been done, the account is not part of the probate estate. The money can be accessed from the account by taking a death certificate to the bank.
- Retirement accounts: Many retirement accounts including IRAs have named beneficiaries. If so, the account is not part of the probate estate. Instead, the beneficiary should contact the company managing the account directly to find out about the beneficiaries and to receive any payout.
- Transfer on Death Deed: If there is a (TODD) related to any real property, such as land or a house, the deed transfers the real estate without the need for probate.
Executor or Administrator in Texas Probate
A Texas probate procedure is judicially supervised, but the probate judge does not tackle the day-to-day issues. And since probate involves many steps that must be undertaken, the court appoints a personal representative to manage it.
If there is a valid will, it can name the person to serve as executor, a choice the probate court almost always accepts. If there is no valid will, the court appoints one of the deceased's closest relatives as the personal representative.
The personal representative is in charge of the day-to-day probate matters, from locating and filing the will to distributing the estate assets to beneficiaries.
Matters Determined by Probate Court
The probate court process resolves a wide range of issues, including:
- Determining whether the deceased wrote a will.
- Locating the will.
- Finding the will witnesses.
- Court hearing and ruling on any will challenges.
- Adjudicating the validity of a will.
- Determining the heirs of the deceased if no valid will is found.
- Appointing someone to serve as the personal representative for the estate.
- Identifying and taking possession of estate probate assets.
- Transferring the probate assets to the personal representative or the administrator.
- Calculating the estate value and determining if any shortcut procedures apply.
- Compiling a list of probate debts.
- Determining whether debts are legitimate.
- Locating the will beneficiaries or determining and locating heirs of the deceased.
- Converting assets to cash, if necessary, to pay estate debts.
- Managing any ongoing businesses of the estate during probate.
- Completing estate tax forms and paying taxes due.
- Distributing property to beneficiaries or heirs.
Wills in Texas
The difference between testate succession and intestate succession is the existence of a valid Texas will, so it's important to understand what that means. Most are aware that a will is a legal document setting out how the person making the will, the testator, wishes to leave their property at death.
Whether a will is valid is a matter of state law. In order for a will to be valid in Texas, the testator must follow Texas rules for making the will.
In Texas, for a will to be valid, the testator must have legal capacity, testamentary capacity and testamentary intent. Additionally, they must follow certain formalities:
- Testator has legal capacity if they are at least 18 years old. They also have legal capacity to make a will if they are lawfully married or a member of the U.S. Armed Forces.
- Testator must be of “sound mind,” having the mental capacity to understand that they are making a will, and to know the extent of their assets and the persons in their family. Testamentary intent means that when the testator signs the will, they know they are disposing of their assets at death.
- Wills in Texas can either be written entirely in the handwriting of the testator and signed by them, or printed or typed and witnessed by two persons over the age of 14. The witnesses sign the will in the testator's presence.
Dying With a Will in Texas
If someone dies leaving a valid will in Texas, the court will respect and follow the terms of the will to the extent they are legal. Beneficiaries named in the will in Texas will receive the assets the will identifies for them. The person named in the will to be the personal representative will, absent unusual circumstances, be named to this role by the court.
If the deceased left a valid will, probate proceeds in Texas like this:
- Will is filed in probate court in the county where the deceased resided. This must be done within four years of the date of death.
- All interested parties are given notice of the probate.
- Court appoints a representative who is responsible for handling the deceased’s estate.
- Representative collects the deceased person’s assets and debts.
- Representative verifies and pays all legitimate estate debts.
- Representative distributes assets of the deceased that remain after bills are paid to the beneficiaries named in the will.
Dying Without a Will in Texas
For the most part, the steps of probate are the same in Texas without a will as they are with a will, but there are a few important differences when someone dies without a will. Like in a testate estate, the probate must be opened within four years of the date of death.
One difference in intestate estates involves the appointment of someone to guide the intestate estate through probate. Without a valid will, the deceased has not selected anyone to manage the probate process, so the court must appoint one. Generally, in Texas, this person is the surviving spouse or an adult child.
If a deceased passes intestate—without having prepared a valid will—they have not named beneficiaries to inherit their assets. Instead, the court looks to Texas' intestate succession statute. Under this law, the property will go to legal heirs, that is, relatives, starting with those closest to the deceased. The intestacy law sets out the order in which next-of-kin will inherit.
Texas Next-of-Kin Order Under Intestate Succession Laws
Like most states, Texas puts the surviving spouse and the deceased's children and descendants first on the list of heirs. If there is a surviving spouse but no children, the spouse inherits everything regardless of whether the deceased has other surviving relatives like parents or siblings.
If there are surviving children or grandchildren but no surviving spouse, the children take everything regardless of whether the deceased has other surviving relatives like parents or siblings. Grandchildren only inherit in their parent's place.
If there is no surviving spouse or surviving descendants (children, grandchildren or great-grandchildren), but there are surviving parents, they take everything, splitting it equally between the two of them.
If only one parent survives the deceased, that parent takes everything. If there are no surviving parents, surviving siblings split everything equally among them.
If There Are No Close Next-of-Kin
Things are more complicated when more than one of these close next-of-kin groups are represented as survivors. For example:
- Surviving spouse and children born to or adopted by the deceased: The spouse inherits all of the community property, which is property owned jointly by spouses, as well as one-third of the deceased’s personal property and the right to use their real estate during the spouse’s lifetime. The children inherit the rest.
- Surviving spouse and children the deceased had or adopted with another partner: The spouse inherits half of the community property as well as one-third of the deceased’s personal property and the right to use their real estate during their lifetime. The children inherit everything else.
- Surviving spouse and surviving parents of the deceased: Spouse inherits all of the community property as well as all of the personal property. They also inherit one-half of any real estate separately owned by the deceased. The parents of the deceased inherit the rest.
- Spouse and siblings: The deceased’s spouse inherits all of the community property as well as the deceased's personal property. They inherit one-half of any separately owned real estate. The siblings inherit the rest.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.