Last month, we discussed the probate process when the deceased had prepared a valid will. If you need to get caught up, you can read that article here. Before we begin, it is essential to reiterate that having a will doesn’t allow you to avoid the probate process. Having it makes the process easier, but it doesn’t prevent it. After reading our last blog, we hope you understand the importance of meeting with an estate planning attorney to draft your will. Even if you are diligent with your estate planning, that doesn’t mean you won’t ever be a beneficiary (or an administrator) of someone else’s estate that doesn’t have a will.
Community & Separate Property
By choosing not to make a will, you are giving up your ability to determine where your assets go when you pass away. Although your family may know what you would have wanted, those wishes do not influence the probate process. When you pass away without a will, your assets get distributed based on intestate laws outlined in the Texas Estates Code.
Intestate laws apply to you regardless of your marital status and whether you have children. If you are married or plan to be, then you must understand the difference between community and separate property. Community property encompasses assets acquired during your marriage. When you pass away and have a spouse and children, your surviving spouse may receive the community property. However, if you are in your second marriage and have children from a previous one, the surviving spouse keeps half of the community property, and your children keep the other half. More importantly, if you don’t have a will, this is going to happen regardless of whether you would have wanted that result.
Separate property speaks to anything you acquired before the marriage began. Additionally, if you received a gift or inheritance during the marriage, it is separate property as long as it wasn’t commingled with community property. Take a look at the following scenarios:
- Spouse & No Children: When you don’t have children or other descendants, the spouse typically keeps your separate personal property. However, the spouse may share ownership of the real property (real estate) with parents or siblings of the spouse who has passed away.
- Spouse & Children: Spouse receives one-third of your separate personal property and a one third life estate in your separate real property. (Life estate allows the surviving spouse to use your separate property while they are still alive.) The other two-thirds of the separate personal property and all of the separate real property, subject to the life estate, goes to the children.
Commit to Making a Will
Although we explained a few ways your property gets divided when there is no will, there are countless other scenarios. People get divorced, remarry, and have children with different spouses. Additionally, there’s a possibility that an heir may be a non-U.S. citizen. Regardless of your specific circumstances, the Law Offices of Debbie J. Cunningham are here to assist you with the probate process. You should also take the time to draft a will so that you get to choose who receives your assets and handles your probate. To begin writing your will or for help with probate, get in touch with us today to schedule a consultation.
Law Offices of Debbie J. Cunningham
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