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Intestate Real Estate Property | Probate Law | Farrow-Gillespie Heath Witter LLP

What Happens to Your Real Estate Property If You Die Without a Will?

If you reside in the state of Texas and die leaving a valid will that disposes of real estate property, then the real estate ownership will pass to the person who is to receive the land according to the will. However, the will must be probated in a court for this transfer to be effective.

If you die without a valid will, or if your will is never probated, then your real property is distributed under the intestacy laws of the state of Texas.

The applicable rules of “descent and distribution under Texas law vary depending on whether you are single or married and if had children or other heirs at the time of death. Depending on your particular circumstances, your heirs could include a surviving spouse, your parents, siblings, aunts, uncles, nieces, nephews, or even distant relatives you may not know. Only in the worst-case scenario, when no heirs exist, will your real estate property go to the state of Texas.

If You’re Single

If you are single (whether never married, divorced, or widowed) and you have children at the time of your death, then your real estate property will go to your children to share in equal parts. If any child has died before you, and that child has any children, then that child’s share will go to his or her descendants. If not, the deceased child’s share goes to his or her siblings.

If you are a single person with no children who is survived by both parents, then your father will receive half of your real estate property and your mother will receive the other half.

If you are single and have one surviving parent, but no siblings or descendants of deceased siblings, then all of your real estate property goes to your surviving parent.

If you are a single person survived by only one parent and by siblings (or a sibling’s descendants), then your siblings and the descendants of deceased siblings are entitled to one-half of the real property, and your surviving parent is entitled to the other half. If you are single and both your parents died before you, your real property goes to your siblings and/or their descendants. In either event, if you are at least survived by one sibling, the siblings’ portion is divided by the number of siblings; descendants of a predeceased sibling divide that sibling’s share equally. If all your siblings predeceased you, the siblings’ share is divided equally among all your nieces and nephews.

The foregoing rules apply when you and your siblings share the same parents. If you have half-siblings, your full siblings get a double share as compared with your half siblings.

If You’re Married

Community Property

If your real estate property is community property, in most cases the property goes entirely to your surviving spouse. But if you have children who are not also children of your surviving spouse, then the children will take your community real property share and the surviving spouse retains his or her share.

Separate Real Property

If it’s separate real property, it may be split between your surviving spouse, siblings, parents, and children. For example, if you have separate real property and you are married with children at the time of your death, your separate real property will all go to your children and your surviving spouse will get one-third interest in a life estate. All of your separate real property will be owned outright by your children when your surviving spouse is no longer living on the property. If you have no children, your surviving spouse receives one-half of your separate real property and the other half passes as if you were single (see above).

Unmarried Couples

If you are an unmarried couple living together, the surviving individual will not have any ownership rights to your real estate property. When you die without a will, your interest in the real property will be divided among your heirs. Texas intestacy laws only recognize the right of relatives to inherit property. Therefore, unmarried couples do not have any real property rights in their partner’s assets if they die, unless a will or other legal document clearly states otherwise. This rule applies to persons in domestic partnerships as well.

Avoid Dying Without a Will. Consult an Attorney.

Preparing estate planning documents can be complicated and it would be wise to talk to an estate planning attorney licensed to practice law in Texas. An experienced estate planning attorney can assist you in preparing a valid will and other estate documents to meet your specific needs.

Farrow-Gillespie Heath Witter LLP | Probate Law | Dallas, TX

Dallas County Probate FAQs

Q1:  Can I probate a Will without an attorney?

Unfortunately, no.  The Probate Courts do not allow individuals to appear on behalf of themselves.  For all purposes in Probate Court, you must hire a lawyer.

Q2:  I’ve been appointed as the Executor of a Will.  What am I supposed to do?

A:  The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

Q3:  I am the Executor, and I have the original Will.  Why does it need to be probated?  Why can’t I just give away the property according to the Will’s terms?

A: If any of the property to be distributed is held under a “title” — such as a house, vehicle, bank account, or real estate — you need authority from the probate court to transfer that title to the new owner.  By probating the Will, you as Executor obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

Q4:  What if I want to contest a Will? 

A:  Contact a probate attorney immediately.  If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

Q5:  What if the Will doesn’t provide for an independent representation?

A:  If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive.  That is why it is important to have a properly drawn-up Will.

Q6:  What if there is no Will?

A:  If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property.  If the decedent owned property worth more than $50,000, the next of kin (or other close relative) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

Q7:  All the deceased person owned was his or her home.  Does the Will still need to be probated?

A:  Yes.  Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house.  However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property.  The procedure is called a “Muniment of Title.”  Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

Q8:  I have looked everywhere for the original of the Will and can’t find it.  What should I do?

A:  It may be possible to probate a copy of the Will.  Also, it may be that the decedent had a safety deposit box to which you do not have access.  We can assist you in finding the box and obtaining a court order to gain access to it.