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How Is My Property Distributed Upon Death?

  • Wade Christiansen
  • Sun, 07/22/2018 - 11:38am

Individuals who accumulate property during their lifetime often worry about what happens to that property when they die.  Today's blog will summarize the law with regard to distribution of property following death.

Distribution of property of a person who has a  valid Last Will and Testament

The law is very simple as it relates to a person who has a valid Will - the property is distributed to whoever the testator has designated in the Will.  It is not required that the property be distributed to certain family members or categories of family members.  In other words, a testator may take into account an innumerable number of factors, such as relationships with family members, special needs of family members and friends, a desire to make charitable donations and other factors in deciding who should receive what property.

Distribution of property of a person who does not have a valid Last Will and Testament

If a person does not have a valid Will, Texas law governs the distribution of the Decedent's property.  How that property is distributed depends on whether the person is married, whether the person has children, whether the children are also the children of the surviving spouse, whether the property is community property or separate property, and whether the property is real property or personal property.  While the exact distribution of property is rather complex, here are the basics:

For a person that is married with children, all community property is distributed to the surviving spouse, if all of the children are also the children of the surviving spouse.  If there are surviving children who are not also the children of the surviving spouse, half of the real and personal property goes to the surviving spouse and the other half is divided equally among the children or their descendants.  Separate real property goes to the children, subject to a  one-third life estate to the surviving spouse.  Two-thirds of the separate personal property goes to the children and the remainder goes to the surviving spouse.    

For a person that is not married at time of death, all property is distributed to the Decedent's children or their descendents in equal shares.  If there are no children, and both parents survive, the property is divided equally between the parents.  If one parent and siblings or their descendants survive, half goes to the parent and the other half to the siblings or their descendants equally.  If one parent and no siblings survive, all property goes to the surviving parent. If no parent survives and siblings survive, all property is divided equally among the siblings or their descendants. 

For a married person with no children, all community property and all separate personal property is distributed to the surviving spouse.  If both parents survive, the surviving spouse receives half of the separate real property and the surviving parents each receive one-fourth.  If one parent and at least one sibling survive, the spouse receives one-half, the parent receives one-fourth and the siblings or their descendants equally share one-fourth.  If one parent and no siblings survive, the surviving parent and surviving spouse share the property equally.  If at least one sibling survives and no parent survives, the surviving spouse receives one-half and the surviving siblings share one-half equally.  If no parent or sibling survives, the surviving spouse receives all of the separate real property.

In order to maintain complete control over the distribution or your estate, it is critical to have a valid Last Will and Testament to avoid the complex and arbitrary rules for distribution that are described above.  If you don't currently have a Will, or would like to reevaluate the terms of your current Wil, you should consult with an estate planning lawyer as soon as possible.  The probate and estate planning lawyers of Christiansen Law Firm have extensive experience preparing Wills and other associated documents.  Contact the offices of Christiansen Law Firm in Houston or San Antonio to arrange a free evaluation of your estate plan and expert advice that is tailor fit to your circumstances.

 

 

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