What happens when someone dies but doesn’t have a Will?
By Colin Smith
I rarely get calls from unmarried men to set up estate planning appointments. Most of my calls come from women, or from men who are calling me at their spouse’s request. Why? I’m male, so my theory is that most men have decided we are immortal until life proves us wrong.
Life often does prove—some—people wrong, and they pass away without a Will. If a person has a Will when they die, and it is invalid, it will not apply. If someone dies without a Will, the State of Texas has one for them. It’s called “dying intestate,” and the division of property depends on the family tree at the time the person died. Disclaimer: this is a general statement of the rules. This is not legal advice.
The law is covered by Chapter 201 of the Texas Estates Code. If someone dies when they are not married, their estate goes to their children. If they don’t have children, it goes to both parents. If both parents are not living, the estate splits between the surviving parent and the deceased’s siblings. If there are no parents or siblings, the law generally expands the family tree until there is a blood relative to inherit.
If someone is married at the time of their death, the estate splits between the surviving spouse and the family of the deceased. The actual split depends on a number of factors, such as (1) the nature of the property, (2) if the deceased had any children, and (3) whether or not the deceased had all of their children with the surviving spouse.
The process for probating an intestate estate is much more involved than probating a Will. Intestate probate requires a legal finding of heirship, which establishes who the heirs of the estate are. An attorney must be appointed by the court to investigate who the heirs were of the deceased. In summary, the legal fees and hoops associated with probating an intestate estate make having a Will worth the price.