If your loved one passed away without a will, the law steps in and determines the outcome of the person’s estate.  This law is called the law of intestate succession.  It is commonly referred to as the person dying intestate.  A brief outline regarding intestate succession is provided at the end of this page.

There are certain options to consider if your loved one passed away without a will, especially if your loved one had real property.

As discussed below, the interest in your loved one’s property goes a specific way setup by law.  While this occurs “at death” subject to creditor’s claims, until someone takes action, nothing is automatically documented.  Below are several options which our firm can discuss and help you decide which one best meets your circumstances.

Declaration of Heirship

A Declaration of Heirship is a process whereby the court enters an order outlining the heirs of the deceased person.  With this order, the laws of intestate succession will describe the interest each person has in the deceased person’s estate.

Small Estate Affidavit

The probate code outlines a process where a person can file a small estate affidavit and obtain an order from the judge which accepts the small estate affidavit.  This affidavit is generally used, as the names suggest, in small estates where the deceased estate is less than $50,000, not including the homestead or exempt property.

Affidavit of Heirship

Affidavit of Heirships are affidavits which outline the family history of the deceased.  They have been commonly used in Texas to help “clear” title in real property.  They have been commonly used as an inexpensive way to clear title to real property.

Administration

An estate of a person without a will can also be administered using similar procedures used in a dependent administration when someone passes away with a will.  By applying to have an estate administered, the court will appoint an administrator.  The administrator will take similar steps as an executor in a dependent administration of a deceased person with a will.

Our firm can help you decide which method best fits your situation.  Each method discussed has its benefits and drawbacks.

The law changed in September of 1993 regarding intestate succession.

Post 1993

In determining what interest a person has in a loved one’s asset, you must first determine the “type” and the “character” of the property.

Type

Personal Property — Personal property is that property which is not real estate.  Items such as cash, cars, the items in a house which are not physically attached, bank accounts, etc.

Real Property — Real property is the property that is real estate.  It is the “dirt”, so to speak.  It also includes the “improvements” attached to the real property.  The house, the barn, the cement slab, the garage, etc.

Character of the Property

Character of property is a determination of whether the property is considered “community property” or “separate property.”  Generally speaking, property acquired during a marriage is considered community property.  Property obtained by inheritance, prior to marriage, or by gift, it is considered separate property.  The characterization of property can also affected by an agreement during marriage, the way the property was conveyed, and other methods.  It is important to determine the character of property because the laws of intestate succession treat separate and community property differently.  Our firm will assist you in determining the character property and how the law will treat the property.

Intestate Succession and Personal Property

A person dying without a surviving spouse, the law of intestate succession the personal property goes to his/her children equally or the descendants of his/her children.

• If there are no children or descendants of children, then the interest in the personal property will go to his/her mother and father in equal portions.
• If only one parent survives, then one-half of his/her interest shall go to the surviving parent the other half would go to the brother’s and sisters of your loved one.
• If no parent survives the deceased, then their interest go to the brothers and sisters of the deceased.

Separate Personal Property

A person dying with a surviving spouse, the personal property is distributed slightly different.  One-third (1/3) interest of the personal property goes to the surviving spouse.

• The remaining two-thirds (2/3) will go to the deceased’s children or the children’s descendants.
• If there are no surviving children or surviving descendants of the children, then all interest in personal property goes to the surviving spouse.

Separate Real Property

A person dying with a surviving spouse, the real separate property is distributed different.

• If there are surviving children or surviving descendants of the children, then the surviving spouse receives a one-third (1/3) interest in the real property for the surviving spouse’s life with the remainder of the interest in the real property going to the children or the surviving children’s descendants.
• If there are no surviving children or surviving descendants of the children, then the surviving spouse will receive one-half (1/2) interest in the real separate property with the remaining one-half (1/2) interest interest passing to the deceased mother and father.  If the deceased mother and father are not living at the time of the deceased death, then to the deceased brother’s and sisters.  If mother/father and brother’s and sisters are not living at the time of the deceased death, then the one-half interest is to go all to the surviving spouse.

Real Community Property

A person dying with a surviving spouse, the real community property is distributed as follows under the intestate statute.

• If the deceased has surviving children, or descendants of the children, and the children are all of the marriage, then all the real community property will go to the surviving spouse.
• If there are children outside of the marriage, the surviving spouse retains his/her half community interest and then one-half interest goes to all the children.