What happens if I die without leaving a will?

On Behalf of | Oct 4, 2021 | Estate Planning

Perhaps the best way to explain why everyone in Texas should prepare a will is to talk about what happens when someone dies without one. In this post, we will give an introduction to that topic and show how leaving a will can avoid many problems. But first, we need a brief introduction to some of the terms and topics we’ll be talking about.

When a person dies, all their property becomes known as their estate. A Texas probate court oversees the distribution of the estate, so that any remaining debts are paid off and the assets are distributed to the deceased person’s heirs. If the deceased left a valid will, the will appoints an executor to be in charge of the process. The executor administers the estate and distributes the assets according to the legally binding instructions in the will.

If the person did not leave behind a valid will, they are said to have died intestate. The person’s estate is administered according to the Texas law of intestacy.

Intestate succession

Without a chosen executor to administer the estate, the probate court must take a more active role in administering the estate. It may appoint a relative of the deceased as a personal representative of the estate,. Like an executor, this person becomes responsible for paying off debts and taxes and all the other work of administering the estate. However, when it comes to distributing the assets of the estate, this person must do so according to the state’s law of intestate succession.

The law of intestate succession requires the personal representative and/or the court to search for the deceased’s nearest kin. If the deceased died with a surviving spouse and biological children, the spouse inherits all the couple’s property, according to Texas law on community property. The spouse also inherits one-third of any separate property the deceased owned and has the right to live in the real estate owned by the deceased. If the deceased left behind a spouse and no descendants or parents, the spouse inherits everything in the estate. There are also provisions that can distribute some of the estate to the deceased’s parents and/or siblings.

Things get much trickier in cases where the deceased died without a spouse or close relative. For these cases, the court and the personal representative must map out a family tree for the deceased, and distribute the remainder of the estate to the nearest kin, according to a strict formula. For instance, if the deceased had no spouse, no parents, no children and no siblings at the time of their death, their estate may go to nieces and nephews, aunts and uncles or cousins of any degree. It could even go to surviving relatives of a predeceased spouse.

Occasionally, someone dies without any surviving relative. In such a case, their entire estate goes to the state of Texas.

Problems with intestate succession

The law of intestate succession can lead to some strange results that the deceased would never have chosen, had they drafted a will. Sometimes, a distant relative who didn’t even know the deceased ends up inheriting the estate while a close companion of the deceased gets nothing.

But perhaps the biggest problems with intestate succession are simply the time, the frustration and the expense. It may require tracking down and getting contact information for distant relatives, and perhaps even looking through public records to identify everyone in a family.  All this takes time and work for the personal representative and the court, who must be compensated. It may also require the paying of many fees.

Where does the money come from to pay for all of this? It comes from the estate itself. The expense of administering an intestate estate eats into whatever remains of the estate after all debts have been satisfied and taxes have been paid. As a result, there is less to go around when it comes time to distribute the remainder to the heirs, whoever they are.

With all this in mind, it’s clear that a will can save everyone a lot of time and money. It can also save loved ones a lot of uncertainty and frustration.