What to Do if Someone Dies With a Will Versus Without a Will in Texas

By White & Mejias on May 28, 2024
What to Do if Someone Dies With a Will Versus Without a Will in Texas

When a loved one passes away, the steps you take to settle their estate are governed by state probate laws. In Texas, the probate procedure involves validating a will, appointing an executor or administrator, paying off debts and taxes, and distributing the remaining assets to beneficiaries or heirs. However, the steps and responsibilities under the Texas Estates Code can vary depending on whether the deceased had a valid will. In this article, we outline the requirements in both scenarios and how a Texas wills and estates lawyer can help.

Dying With a Will (Testate)

When someone dies with a will, the first step is to locate the original document. This might involve checking the deceased’s personal files, safe deposit box, or with their estate planning attorney. It’s critical to find the original document, as copies may not be accepted by the court. 

Once located, the will must be filed with the probate court in the county where the deceased person lived. The named executor typically files the application for probate, along with the original will and a death certificate. The court will then schedule a hearing to validate the will and officially appoint the executor. The county clerk will also post a public notice that gives potential heirs the chance to contest the will.

Duties and Responsibilities of the Executor

The executor is responsible for managing the estate through the probate process. Duties include:

  • Conducting an inventory of assets within 90 days. This includes real property, bank accounts, personal property, and any outstanding liabilities. In some cases, an appraisal of the estate’s assets may be necessary to determine their value.
  • Notifying beneficiaries and creditors. If no beneficiaries are listed, state law will determine who will inherit estate assets. 
  • Paying debts from estate assets. This includes mortgages, credit card debts, and other obligations. 
  • Filing tax returns and paying any taxes owed by the estate. This includes federal estate taxes and any state-specific taxes.
  • Distributing assets once debts and taxes are settled. The executor must ensure that each beneficiary receives their designated share. After distributing the assets, the executor must file a final accounting with the court, detailing all transactions. Once the court approves, the estate is formally closed.

By following these steps, the probate process in Texas can be completed more efficiently, ensuring that the deceased’s wishes are fulfilled and their estate is properly managed. 

Independent vs. Dependent Administration 

If the will so directs, the executor may be granted independent administration, which allows them to act with minimal court supervision. This is most common in attorney drafted wills. Wills produced through online platforms tend to forget about this and can create significant problems for the family.  If independent administration is not specified, or if the court does not grant it, the estate will be handled through dependent administration, which involves greater court oversight and can really lengthen the amount of time required to probate the person’s estate.

Most Texas wills direct the executor to pursue independent administration because it is quicker, simpler, and less expensive. The executor acts with more autonomy, without needing court permission for actions like paying debts, setting aside family allowances, selling estate property, and distributing assets to beneficiaries. The executor must still publish a notice to creditors and file an inventory of assets with the court, but overall, the process is streamlined. Our attorneys will ensure that you are well informed of each step in the process. 

Dependent administration, which involves more court supervision, is often used when there is no will or the will does not provide for independent administration. In this case, every action by the executor, such as selling property or paying debts, requires court approval. This legal process can be more time-consuming and costly but provides greater oversight, which can be beneficial in complex or contested estates.

Dying Without a Will (Intestate)

When someone dies without a will, Texas law dictates how their estate is managed and distributed. To determine the legal heirs of a party who died intestate, several factors must be considered:

  • Marital Status: Whether the deceased person was married or unmarried.
  • Children: Whether the deceased had children, and if so, whether those children were also the children of their surviving spouse.
  • Property Type: Whether the property is separate or community property.

Overview of Intestate Succession

Dying without a valid will triggers the Texas laws of intestacy. These laws establish who will receive the deceased person’s assets, who will care for any minor children, and how debts will be paid. Here is the typical order of succession:

  • Current Spouse: If the deceased was married, the spouse might inherit the entire estate, especially if there are no children from outside the marriage.
  • Children: If there is no surviving spouse, the estate is divided among the biological and adopted children. If the deceased person had children from a previous marriage or relationship, the estate may be split between the spouse and children.
  • Grandchildren: If the adopted and biological children are also deceased, the grandchildren inherit the estate.
  • Parents: If the deceased person leaves no surviving spouse, children, or grandchildren, the parents inherit the estate.
  • Siblings: If the parents are also deceased, the siblings inherit the estate.
  • Grandparents: If there are no surviving siblings, the grandparents inherit the estate.
  • Extended Family (Next of Kin): If no immediate family members are alive, extended family members such as nieces, nephews, aunts, uncles, and cousins inherit the estate.

One critical factor in this process is determining whether the assets are classified as community or separate property. Community property, which generally includes assets acquired by either spouse during the marriage, is owned equally by both spouses, regardless of whose name is on the title. If a person dies intestate, the surviving spouse will inherit their share of the community property. However, if the deceased has descendants (children, grandchildren, or great-grandchildren) from a different relationship, the property is divided differently:

  • Surviving Spouse and Descendants: The current spouse retains half of the community property and the deceased person’s half is divided equally among their descendants.
  • Surviving Spouse Only: If there are no descendants from outside the marriage, the current spouse inherits all the community property.

Separate property includes assets acquired by a spouse while single as well as gifts and inheritances they received during the marriage. Separate property remains under the individual ownership of the spouse who acquired it, even after marriage. Its distribution in intestate succession depends on who the surviving relatives are.

  • Spouse and Descendants: The surviving spouse inherits one-third of the separate personal property and the remaining two-thirds is divided among the descendants. The surviving spouse also receives a life estate (the right to use the property during their lifetime) in one-third of the separate real estate, with the remaining two-thirds passing to the descendants outright.
  • Spouse and Parents/Siblings: If the deceased has no descendants but has surviving parents or siblings, the surviving spouse inherits all the separate personal property and half of the separate real estate. The other half of the real property goes to the parents or siblings.
  • Spouse Only: If there are no surviving descendants, parents, or siblings, the surviving spouse inherits all the separate property.

The Probate Process for Intestate Estates

When a person dies in Texas without a will, someone, usually a family member, files an application with the probate court to become the estate administrator. This person will be responsible for managing and distributing the estate, which typically goes through dependent administration, although independent administration can sometimes be requested and granted. 

Like estates governed by a will, the administrator compiles a list of the deceased’s assets and debts and has the assets appraised to determine their value. They also use the estate’s assets to pay off any debts and taxes owed by the deceased before distributing the remainder to the heirs according to Texas intestate succession laws. Once this step is complete, they file a final accounting with the court, detailing all transactions and distributions. Once the court approves the accounting, the estate is formally closed.

Handling an intestate estate can present several challenges, including:

  • Disputes Among Heirs: Without a will, disagreements among potential heirs are common and can lead to legal disputes.
  • Determining Heirs: Identifying and proving the rightful heirs under intestacy laws can be complicated, especially in large or blended families.
  • Time and Cost: The process can take longer and be more expensive due to the increased court supervision and the need to follow intestate succession laws.

Understanding these steps and the order of succession in Texas can help the legal process go more smoothly. For detailed guidance, consider contacting a probate attorney who can help navigate the legal requirements and ensure the estate is handled correctly.

Do All Estates Have to be Probated in Texas?

If a person dies with a valid will, the will typically has to go through probate to be validated and to ensure that the deceased’s assets are distributed according to their wishes. However, the type of probate required can vary:

  • Muniment of Title: This simplified probate proceeding can be used if the estate meets specific criteria, such as having no outstanding debts (other than those secured by real estate). The court approves the will as a muniment of title, allowing assets to transfer directly to beneficiaries without the need for a full probate administration.
  • Small Estate Affidavit: If the total value of the estate is less than $75,000 (not including the homestead) and there is no will, heirs can use a small estate affidavit to transfer assets, thereby avoiding a formal probate proceeding. The most common use of this option is for small bank accounts and homestead properties.

Alternatives to Probate

While many estates do require some form of probate, several alternatives can simplify or bypass the process entirely. They include:

  • Living Trust: Property placed in a living trust does not go through probate. Instead, trust assets are transferred directly to beneficiaries according to the terms of the trust. This can save time and money and provide privacy, as the details of the trust do not become part of the public record.
  • Joint Ownership with Right of Survivorship: Property owned jointly with another person, such as a spouse, automatically transfers to the surviving owner upon death. This transfer happens outside of probate, ensuring immediate access to the property.
  • Beneficiary Designations: Life insurance policies, retirement accounts, and other financial instruments often allow the owner to name a beneficiary. These assets transfer directly to the named beneficiary without going through probate.
  • Payable on Death (POD) and Transfer on Death (TOD) Accounts: With these bank or brokerage accounts, the owner names a beneficiary to receive the contents upon their death. The transfer of these accounts occurs outside of probate, providing immediate access to funds for the beneficiary.

Understanding these options can help ensure a smoother transition of assets to beneficiaries. A Texas estate planning lawyer can help you and your family understand your rights and obligations under these probate alternatives.

Questions? An Estates Lawyer in the Woodlands Can Help

Whether your loved one left a will or passed away without one, it’s essential to know your options to ensure a smooth transition of their assets. Using strategies such as muniment of title, living trusts, and beneficiary designations can simplify or even bypass the probate process altogether.

If you need assistance with probating a loved one’s estate or exploring these alternatives, the experienced attorneys at White & Mejias are here to help. We can provide professional guidance and support to ensure your loved one’s estate is handled properly and in accordance with Texas law. For more information or to schedule a free consultation with an experienced probate lawyer, call (713) 818-7116 or contact us online today.


Category: Probate