Texas Inheritance Laws: Expect the Unexpected Friday, September 10, 2010

Jeffrey A. Rattikin By: Jeffrey A. Rattikin
Friday, September 10, 2010

Let’s face it. Texans are a proud breed, and we firmly believe that we hold an inalienable right to control our God-given assets even beyond the grave. But unfortunately, Texas lawmakers, in all their infinite wisdom, don’t always share this view. As a result, unless you execute a valid written will, and it is offered up for probate within four years of your death, the State of Texas decides who will inherit your property, applying a rigid set of rules and formulas outlined in the Texas statutes without regard to any pre-death intentions or promises. To be sure, this application of non-flexible guidelines often leads to the estate’s inclusion of long-lost, inadvertent and all of a sudden gleeful heirs, reveling in their good fortune, typically with their hand out for compensation to clear up their new-found property interest. For a more extensive analysis of the potential pitfalls of dying without a will, be sure to read this author’s article at http://www.texaslegaldocs.com/blog/default.aspx/When-Mama-Dies--the-Turf-War-Begins--Who-Takes-Title-to-the-Family-Farm.
So who does inherit a decedent’s property if no will had been executed prior to death, or none found after death? The Texas formula for determining heirship is as complicated as the intertwined lives of its citizens. But regardless of its complexity, everyone has some sort of legal heir to their assets immediately upon death; it may just be a person who would be quite surprising. The statutory formula takes into consideration whether the property owned by the decedent at the time of their death is community or separate, whether the decedent is married or single, and whether and to whom children are born.
Everyone assumes that if a married Texan dies without a will, their property would be automatically inherited by their spouse. However, prior to September 1993, that just was not the case. Until that time, if any children were born to the decedent, the spouse would not inherit any of the decedent’s interest in the assets. But after September, 1993, the law was revised to its current configuration.
Today, if a married Texan dies, all of his or her interest in community property will pass by law to their surviving spouse. But there is always an exception to every rule. If the decedent had any children born to a person other than the surviving spouse (from a prior or illegitimate relationship, for example), all of the decedent’s half interest in the property will pass to the children or the children’s heirs, and not to the surviving spouse! This of course, leads to the frequent and uncomfortable situation where the children of the decedent now co-own property and assets with their step-parent. To say some past grudges and emotions bubble up and get aired out in these situations would be an understatement. Lesson learned: If you are considering getting remarried, and you have children from another relationship, by all means get a will drafted!
An even harsher result occurs in the treatment of separate property of the decedent, not co-owned by the surviving spouse. In this situation, all of decedent’s interest in real estate passes directly to his or her children (regardless of parentage), with the surviving spouse granted only a life-estate in those assets. Non-real estate assets are divided 2/3 to the children and 1/3 to the surviving spouse. If the decedent had no children, the spouse gets ½ of the separate property, and the other half is divided among the decedent’s surviving parents, and possibly siblings. Again, the formula gets complicated, and leads to some “interesting” co-ownership scenarios.
An unmarried decedent’s property will go to his or her children, if there are any, and if not, to his parents. If no parents survive, then the property will pass to the siblings and their descendants.
In cases where there are no spouse, no children, no parents, no siblings and no descendants of a predeceasing spouse, child, parent or sibling, then it gets even more twisted, bringing into play the paternal and maternal kindred of grandparents, aunts, uncles, cousins and the like.
All because a person fails to obtain and execute a last will and testament prior to death. In short, all Texans should do themselves, and their families, a huge favor by spending a few hundred dollars on a valid and enforceable will, drafted by a competent and experienced attorney who can avoid the numerous pitfalls associated with self-help, fill-in-the-blank generic forms and handwritten wills scratched on the back of a cocktail napkin. Your long-lost unknown cousin who dropped out of society in the 60’s may be left in the cold as a result of your will, but at least you can have the final say in the ownership of that God-given piece of Texas that you have been blessed with. For more information on obtaining a last will and testament, please visit http://www.texaslegaldocs.com/docs/wills/.

Copyright 2009 Jeffrey A. Rattikin, all rights reserved

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