Determination of Heirs

The determination of heirs becomes an issue if a person dies without a will or if the will has been revoked or annulled (“intestate as to the person”) or if a person dies without including a specific asset in an otherwise valid will (“intestate as to property.”)  Under any such circumstance, the probate court acts according to the Texas laws of intestate succession to determine the distribution of the decedent’s property.

There are three primary factors.  Initially, it must be established which family members, if any, have survived the decedent.  Secondly, Texas is a community property state and therefore it must be determined if the asset in question is either community property or separate property.  Under Texas law, community property is “owned” equally by each spouse (as in, each spouse has a 50% share of all community property assets.)  Separate property is “owned” 100% by one spouse.  Finally, the “type” of distribution must be determined.

Who Survived the Decedent?

A surviving spouse has priority and shall receive the decedent’s 50% share of all community property.  Children of the decedent and the grandchildren of the decedent are next in line if there is no surviving spouse or the decedent never married.

Absent these family members, the laws of intestacy look to surviving parents, siblings, and other blood relatives.  If no surviving relatives can be found, the estate of the deceased “escheats” to the state of Texas, meaning that as no heirs can be determined, all property is transferred to the state.

Community Property vs. Separate Property

The first priority for distribution of the separate property of a married spouse will be to the children of that decedent, not the surviving spouse.  However, what exactly constitutes separate property may not be as clear.  According to a Sugar Land estate attorney, the facts and circumstances as to when the specific asset was acquired and the manner in which it was held will be a critical factor in determining the nature (either community or separate) of that asset.

For example, a married couple in Texas may hold property either as their shared (50/50) community property, or as the separate property of either spouse.  The 50% share of the community property of the deceased spouse shall be distributed to the surviving spouse.  But any separate property of the deceased spouse is treated differently.

Type of Distribution

Distributions may be directly to one individual (such as a spouse), in equal shares to several individuals (such as three equal shares to three children) or something more complex.  Should the children of a decedent pre-decease that decedent, the children may take on a per capita basis.  This means they, as the second generation, would split the share their parent would have taken.