Intestacy is a legal term for an individual who dies without a valid will. Every state has its own laws that govern intestacy as well as the distribution of the individual’s property. These laws distinguish between total insect and partial intestacy. Total intestacy occurs when the individual dies with no valid will at all.
Partial intestacy occurs when an individual, referred to as the decedent when they pass away, has a valid will but it does not dispose of all of the property that belongs to them. Typically, state laws provide that the decedent’s spouse has first rights to any property distribution as well as inheritance.
Following the spouse, the majority of states follow the lines of the descendants of the deceased, to their children and grandchildren. If the individual had no family members, their property may go to the state in which they resided.
Certain states treat domestic partners differently. In addition, some states do not have well-defined statutes which outline the rights of domestic partiners, especially in the case of a same-sex relationship.
There are some states that consider all registered partners the same as spouses, but this does not apply in all states. The majority of states have rules which prevent individuals who exercised malice against the decedent from receiving an inheritance.
For example, any individual who is responsible for the death of a decedent or who did not pay child support for a child who passed away will not be permitted to profit from their death.
What is an Intestate Estate?
The term intestate estate refers to the property of an individual who passed away without a will. This term may also refer to portions of the estate, for example, the property or assets which are not covered by a valid will.
That lack of a valid will which provides instructions on how to distribute a decedent’s estate will mean that their property will be distributed according to the state laws of intestacy. It is important to note that, even when an individual passes away without a will, there may be other evidence which shows what their wishes were for the distribution of their assets.
What Does Intestate Succession Mean?
The inheritance succession laws of a state will determine how property is to be distributed when an estate owner passes away without a valid will. In general, property distribution will proceed according to the intentions of the decedent as expressed in their will.
In cases of intestacy, however, succession laws will provide a preference hierarchy among the potential heirs for distribution. Although, as noted above, each state has its own laws governing intestate succession, there are similarities.
In general, close relatives, for example, the decedent’s spouse and children, will typically take priority and will receive a distribution from the estate prior to other individuals. Once they have received their share, more distant relatives may receive a share if any remains.
It is important to note that any tax obligations or debts of the decedent are required to be paid before an estate can be distributed to the heirs. If a case for the estate of an individual who died intestate is opened in probate court, the court will appoint an administrator.
One of the duties of the administrator is to exercise due diligence in their search for the heirs of the decedent. The administrator is required to search for the heirs who are entitled to inherit under the laws of intestate succession.
If an administrator distributes the estate to any individual who is not actually entitled to inherit, that individual is said to have been unjustly enriched. If the inheritance is challenged in court, a court may determine that the individual who inherited property wrongfully has been unjustly enriched and will hold the property they received in constructive trust for the rightful heirs.
An administrator who is shown to have been dishonest or willfully negligent may also be subject to civil or criminal penalties.
Will My Spouse Receive Everything if I do not Leave a Will?
What a surviving spouse receives will depend upon several factors, including the laws of the state. There may be other factors, for example, whether the decedent lived in a community property state and which of their other relatives survive them.
If a decedent did not have children, their spouse may inherit everything or they may share some of the property with the decedent’s parents. If the decedent did have children, the spouse will typically share with them.
Certain states give the spouse a specific amount or percentage of the property and divide the rest among the children. In other states, the spouse will inherit everything.
What Happens when Someone Dies without a Will in Texas?
As previously discussed, an intestate estate is left when an individual passes away without a will and leaves property that may be allocated to their heirs. Texas law dictates how this property should be distributed among the heirs of the decedent.
What Kind of Property is Subject to Transfer without a Will?
Any property which is in the decedent’s estate may be distributed, or transferred, to their heirs or their surviving spouse so long as that property was not disposed of by a valid will.
What Interest Does the Surviving Spouse Have in the Property?
The State of Texas is a community property state. This means that the state distinguishes between community property and separate property.
It is important to note that there are different rules which apply to both categories of property. All of the community property belongs to the surviving spouse.
This applies unless there are heirs who are not related to the surviving spouse. If this is the situation for the decedent, their spouse will receive ½ of their estate while their heirs will receive the other half to divide among themselves.
If the decedent had no children and there are no other heirs, their surviving spouse would inherit their separate property. If the decedent did have children, then the surviving spouse would inherit ⅓ of the separate property and the other ⅔ would go to the children and any other heirs.
If the decedent is survived by their spouse who has no children or heirs, ½ of their separate property estate will go to the spouse while the other ½ will be divided among the descendants.
How is the Intestate Estate Distributed if There is No Surviving Spouse?
When a decedent is survived by heirs but no surviving spouse, the State of Texas distributes the individual’s estate according to a hierarchy. The general hierarchy which is used is as follows:
- Children;
- Parents; and
- Brothers and Sisters.
Should I Hire an Attorney in Texas?
Texas laws may be very specific regarding who has an interest in an intestate estate. If you have any issues, questions, or concerns regarding Texas intestate laws, it may be helpful to consult with a Texas will lawyer.
If you are considering creating an estate plan, your lawyer can advise you regarding the results of having a will and not having a will for your estate. If you are a potential heir who needs assistance with property you believe you should inherit, your attorney can assist you with any requirements or filing deadlines and represent you in court.
