Texas Intestacy: Opening an Estate in Texas Without a Will
There are myriad reasons why someone may not have left a valid will. No matter the reason, though, the process of opening an estate in Texas without a will can be complicated. It can be quite different than the normal process of probating a will in Texas.
What is Intestacy?
The legal term “intestacy” refers to an event where a person dies without leaving a valid will. This is usually called intestate succession or intestate estate. The term intestacy also applies in cases where the decedent made declarations in his valid will but only with respect to a portion of his estate; in which case, Texas intestacy laws will apply to the remaining estate not covered by the provisions of his will. Intestate succession dictates the distribution of the properties in the estate in accordance with the applicable laws and rules on intestacy and inheritance without regard to the desires of the decedent.
Why Does Intestacy Occur?
Why go through the process of creating a will when my estate would still go to my loved ones? True, your properties may go to your loved ones, but have you considered that fact that there may be disagreements that could arise over your properties?
Unfortunately, many people do not appreciate the value of preparing a will to facilitate the smooth and efficient transfer and distribution of their estate upon death. While they may not experience the convenience of having a will, its benefits will ultimately redound to the loved ones left behind.
Imagine a hassle-free probate process. Your loved ones won’t have to undergo the time-consuming, costly, and lengthy process of litigating the distribution of the properties in your intestate estate.
Some people may think making a will is a costly activity; others may also think you have to spend a lot of time to create this legal instrument. But I believe most people think it is just an unnecessary process. This couldn’t be further from the truth.
Division of Property in an Intestate Estate
Intestacy follows the common law of descent; the properties in the intestate estate pass to the closest relatives by blood or marriage. Potential beneficiaries my file applications to determine heirship in Texas when a loved one dies intestate.
A large portion of the decedent’s properties go to the surviving spouse. The shares of the children and other descendants shall also comprise a major part in the intestate estate. In the absence of children and other descendants, it is the parents and other ascendants of the decedent who will receive the shares. Brother, sisters, nephews, and nieces of the decedent will receive a portion of the intestate estate in the absence of the spouse, descendants, and ascendants.
Independent vs. Dependent Administration
There are two ways to initiate the administration of the intestate estate of a decedent:
An independent administration offers the same level of ease as probating a will but may require considerable work and cooperation from all the heirs.
An interested person may petition for his appointment as administrator of the intestate estate. In the alternative, all heirs may consent for the administrator to handle the estate; this option requires the agreement of all heirs who must signify their approval before the court.
In most cases, the heirs are the decedent’s surviving spouse and children. In their absence, other family members or relatives may take their place as heirs.
A distinct feature in independent administration is that the administrator is permitted to handle affairs of the estate independently of the court’s supervision. It allows for a quick and efficient process of identifying the heirs and distributing the properties in the intestate estate.
Where independent administration is not possible as a result of conflict or disagreement between the heirs, the law permits another option called dependent administration.
In contrast to independent administration, the court will look into every transaction or activity of the appointed administrator to see to it that his every action is to the benefit of the intestate estate. By its nature, the administrator will have to seek permission from the court for every transaction conducted.
Assets That Bypass Intestate Succession
Not all assets of the decedent go through intestate succession, including properties transferred by virtue of a living trust.
Money derived from retirement funds, life insurance proceeds, and securities and other proceeds coming from transfer-on-death or payable-on-death accounts will not be addressed in intestate succession.
Also, properties held in co-ownership or joint tenancy will not form part of the intestate estate; although in some cases, the decedent’s share may be included in his estate.
Get Help Navigating Texas Intestacy Laws
With Texas intestacy laws and intestate cases, it is important to seek the assistance of a probate attorney to help you initiate or pursue a case filed before the probate court. It is in your best interest to retain counsel in order to navigate the process and protect your rights.
We can refer local probate attorneys to help you with your situation.