Probate Without a Will

Categories: Probate

Many people in Texas go to a Texas attorney and have their Wills drafted. A Will gives the person the ability to say to whom their property will go once they pass on. However, sometimes people do not have Wills. When a person dies without a Will, their property then passes to others by way of “intestacy”. In this article we will discuss how Texas probate works when there was not a Will. If you are dealing with probate issues, contact Austin probate lawyer Farren Smith for a consultation.

Probate Process in Texas

As we have discussed in other articles, probate is essentially the orderly process of winding up the business affairs of a person who has passed away. The probate process is handled in court and usually family members hire a probate attorney to help them through the court process. The probate will generally occur in the county where the decedent lived. So if the decedent lived in Austin the probate should occur in Travis County.

What if the Person Did Not Have a Will?

If the person died without a Will, his property passes to his heirs under Texas law. This is known as intestate succession. If the decedent did not formally make a Will, the estate passes to his descendants according to Texas law even if the decedent said while he was alive that he preferred that his property be left in a different way.

How the property passes and to whom under Texas intestate laws is very complicated. Often families in Austin, Pflugerville, Cedar Hill, and Round Rock will need an Austin probate attorney to help sort this out. There are a number of considerations, including whether the person was married, if the estate property was community or separate property, and who and what lineage the survivors hold.

Probate without a Will

In probating the estate in court, the family members and their attorney will have a number of things they will need to show. The court will make sure that debts of the decedent are paid and that any homestead is preserved for a surviving spouse if there is one. Some property may be set aside if it is exempt, and the court may need to set up trusts. The remaining estate will be distributed according to Texas intestate laws. Some of the issues the court will determine include the following:

  • Identify survivors and heirs
  • Establish the lineage of the survivors and heirs (e.g., spouse, children, etc.);
  • Treatment of special situations, such as children born after the decedent died, adopted heirs, half-blooded descendants, and children born out of wedlock;
  • Determine community and separate property;
  • Establish if there were debts, advancements, and disclaimers to the property;
  • Follow the Texas rules regarding intestate succession of property; and
  • Affidavits of Heirship to formally identify and pass title to property.

As you can see, probate without a will can be complicated and potentially costly depending on the size and complexity of the estate. It is advisable to see an attorney to help draft a Will so that family members can easy and quickly distribute the estate once a person passes away. Having an attorney in Travis County can help facilitate this somewhat complicated process. If you are in need of an attorney, please contact Austin probate attorney Farren Smith for a consultation.

Sources

  • Tex. Estates Code