In Texas, if a person dies without a will (known as dying “intestate”), the Texas Estates Code determines how that person’s estate is administered and how the estate assets will be distributed. In the most simple cases, such as a husband and wife with no children whose property consists entirely of community property (which generally means property acquired after marriage), the default provisions of the Estates Code regarding intestacy may be acceptable. However, if a married couple has children and one or both of the spouses have any property that is not community property under Texas law, then the Texas Estates Code may frustrate the intentions of the decedent by dictating that certain property is distributed to persons other than intended by the decedent. Intestacy in Texas can result in financial hardship in certain instances, and can also lead to family strife in instances where certain family members do not receive what they expected or thought they were entitled to receive. This is one of the reasons it is important to have a comprehensive estate plan that includes a carefully drafted last will and testament in the state of Texas.
Dying without a will in Texas can become especially problematic in the case of blended families with children from prior marriages. The Texas Estates Code provisions vary as to how assets will be distributed depending on whether children are stepchildren (children from a prior marriage) or adopted children. For instance, while you may wish to treat a stepchild that you have not adopted as a natural child for purposes of inheriting your assets upon death, you may need to take certain steps to ensure that property is left to a stepchild whom you have not actually adopted. In order to to this, you should have a properly drafted Texas will that provides for this. This is just one example of how dying without a will in Texas may result in unintended financial consequences and family tension.
Another reason to have a properly drafted Last Will & Testament in Texas is to take advantage of the relatively simple process of independent administration of an estate in Texas. If a will specifies that an executor is to serve as an “independent executor”, the probate process may be completed in as little as one trip to court by the exeutor and/or his attorney. For example, if a resident of Houston dies with a will and names his spouse as independent executor of his estate, the will is likely to be probated in a Harris County probate court located in Houston. With an independent administration, the number of trips to court and the level of court supervision is kept to a minimum, which means that the time and money involved in probating the will and administering the estate can be minimized. In the above example, this could prove especially beneficial for an executor who lives outside of the Houston area and wishes to be present for any necessary court appearances, since an independent administration will keep that number to a minimum. If a person dies without a will, the court will also appoint another attorney to represent the interests of any undetermined or unknown heirs, which adds to the cost of the estate administration process.
Contact the Houston, Texas office of the Vance Law Firm for a free consultation regarding your probate matter.