Before you contest the validity of a will, you need to be prepared for the consequences of success. A successful will contest could turn out to be a Pyrrhic victory if the testator’s will (the “testator” is the person who made the will) is declared invalid, no alternative will exists, and the testator’s property passes under Texas intestate succession laws — you may end up worse off than if the will had been declared valid.
Intestate succession laws determine how the probate assets of a deceased person are distributed if no valid will exists. Learning about intestate succession laws can also motivate you to make sure that your own will is airtight so that it will be you, not the Texas legislature, that determines the distribution of your property after your death.
The Basic Principle
The basic principle of Texas intestate succession law is that if a person dies without a valid will, their probate assets will be distributed among their closest relatives. In most cases these relatives are limited to the spouse, children, parents, and siblings. In some cases grandparents, grandchildren, nieces, nephews, and cousins may be included.
Remember that under Texas community property law, if a person is married when they die, they own only one half of the marital community property. Roughly, community property includes all of the assets either spouse gained during the marriage minus any gifts given to the spouse by a third party.
Assets That are Excluded From Intestate Succession Law
Only probate assets pass under intestate succession law. Non-probate assets include:+
- Living trust assets
- Insurance payouts (if a beneficiary has been named)
- Assets in retirement accounts such as IRAs (if a beneficiary has been named)
- Property owned in joint tenancy
- Payable-on-death bank accounts
- Spouse’s 50 percent interest in the marital community property (this is considered the living spouse’s property once one spouse passes)
How much the living spouse will be entitled to depends on which close relatives survive the decedent (the person who passed away is commonly referred to as the “decedent”).
- If a person dies without living children, parents or siblings, the spouse gets everything.
- If a person dies with children of their spouse, the spouse inherits 100 percent of the marital community property, one-third of the decedent’s personal property, and a one-third life estate in the decedent’s real estate (essentially, ownership for the life of the spouse)
- If a person dies with children who do not belong to their spouse, the spouse inherits one-third of the decedent’s personal property and a one-third life estate in the decedent’s real estate.
- If a person dies with at least one parent but no children, the spouse inherits the decedent’s half of the community property plus half of the decedent’s real estate and personal property.
- If a person dies with siblings but no children and no parents, the spouse gets all of the community property plus all of the decedent’s personal property and half of the decedent’s real estate.
- If the decedent was legally separated from their spouse at the time of death (but not yet divorced), the spouse will inherit nothing; nevertheless the spouse will still be entitled to their half of the marital community property.
The children of the decedent will be entitled to the following:
- If a person dies with children but no parents, spouse or siblings, the children inherit everything.
- If the decedent’s children belong to the spouse they are married to at the time of death, the decedent’s children will inherit all assets not given to the spouse in item 2, above — parents and siblings get nothing. The decedent’s children will own the decedent’s real estate after the spouse dies.
- If the decedent’s children do not belong to the spouse they are married to at the time of death, the decedent’s children will inherit everything not given to the spouse in item 3, above. The decedent’s children will own their real estate after the spouse dies.
- Any child born during the decedent’s marriage to their spouse is considered their child unless otherwise established.
- Adopted children are considered equally under Texas intestate succession law, and are entitled to inherit equally with biological children.
- If a person dies with more than one child, the children’s share (if any) will be divided among them equally.
- Biological children that were given up for adoption enjoy the same inheritance rights they would have if not adopted.
- If the decedent’s spouse is pregnant when the person dies, the baby has equal inheritance rights with the decedent’s already-born children.
- The decedent’s stepchildren and foster children will inherit nothing unless you legally adopted them.
- “Illegitimate” children: If the decedent has children who were born at a time when the decedent was not legally married to their mother, the children can still inherit equally if (i) the decedent participated in a marriage ceremony before the birth of the child but the marriage was later annulled,(ii) the decedent (father) acknowledges his paternity in writing or (iii) Texas law otherwise acknowledges the decedent’s paternity.
Complications arise, of course, if the decedent dies with children from more than one marriage or a similar unconventional circumstance.
The decedent’s parents inherit everything if the decedent has no spouse, children or siblings when they die. If the decedent leaves behind a spouse but no children, their parents get everything that the spouse does not inherit under item 4, above. Otherwise, the parents inherit nothing.
If the decedent dies with siblings but no spouse, children or parents, their siblings inherit all of their property. If the decedent dies with siblings and a spouse but no parents or children, their siblings inherit everything that their spouse does not inherit under item 5, above. Otherwise, the siblings inherit nothing.
The decedent’s child’s children will receive a share of the estate only if the decedent’s child (child’s parent) dies before the grandchild. Otherwise, grandchildren inherit nothing.
Grandparents, Nieces, Nephews and Cousins
Relatives may be entitled to inherit part of the decedent’s estate under unusual circumstances in which they are the only living relatives.
Escheatment to the State
If no living relatives of the decedent can be found, the State of Texas will inherit the property.
Now is Your Window of Opportunity
Our offices are located on Sweetwater Boulevard in the heart of Sugar Land, Texas. Our clients hail from all over the city — north Sugar Land, First Colony, Sugar Creek, Greatwood, River Park, New Territory and elsewhere in town. In addition to Sugar Land, we also serve Houston and the surrounding areas.
Contact the estate attorneys at Romano & Sumner immediately to schedule a free initial consultation where we can answer your questions and discuss your options with you. We can be reached either online or by phone at (281) 242-0995.