Overview of Estate Planning/Probate in Texas
- Texas Intestate Succession
- Valid Will in Texas
- Texas Estate Planning/Probate Definitions
- Types of Estate Planning/Probate Cases in Texas
- Estate Planning/Probate Resources in Harris County
Texas Intestate Succession
While having a will is highly advisable, it is all too common for a person to die without one. This is referred to as dying intestate. Since this scenario happens quite often, Texas has established how a person’s assets are distributed if they pass without a will. Intestacy is an extremely complex issue and it is highly advised you seek the assistance of an attorney if you have an estate issue. The following is a brief overview of the distribution of the assets of the state under intestate succession but be aware that this overview does not cover all possible scenarios only very common ones.
- A person dies but has no surviving spouse.
- If that person has children;
- the children will divide the assets equally between themselves.
- If that person has no children and no siblings;
- the mother and father will each take half.
- If that person has living parents and siblings;
- the parents will split half and the siblings will split the other half.
- If that person has children;
- A person dies and has a surviving spouse.
- If there are no children and no surviving parents;
- the spouse will inherit the entire estate.
- If that person also has surviving parents;
- the spouse will inherit all community property, all separate personal property, and 1/2 of separate real estate. Parents inherit the rest.
- If that person also has children that are also the children of the surviving spouse;
- the children will take 2/3 of separate and other property with the surviving spouse taking all of the community property and 1/3 of separate and other property.
- It that person also has children that are not the children of the surviving spouse;
- the spouse inherits 1/3 of separate property and half of the community property and the children take the rest.
- If there are no children and no surviving parents;
Valid Will in Texas
It is usually best to die with a valid will rather than rely on intestacy to distribute your estate. There are only a few requirements to have a valid will in Texas. The following is an overview of those requirements.
- The testator (the person making the will) must be 18 years or older.
- The testator must be of sound mind and full mental capacity.
- The testator must be making the will voluntarily and cannot be coerced into making the will.
- There must be two or more credible witnesses over the age of 14 that sign the will in the presence of the testator.
Texas also recognizes holographic (handwritten) wills and nuncupative (oral) wills. A holographic will does not require witnesses and can be self-proved by an attached affidavit that it is the last will and testament of the testator.
A nuncupative will must be made during the last sickness at the residence of the testator or at a place where the testator had resided for 10 days before the will unless the testator is taken sick and dies away from home. The testator must have called three witnesses to bear testimony that the statement is the testators’ last will and testament.
Texas Estate Planning/Probate Definitions
The discussion above only scratches the surface of Texas estate law. There are various scenarios that can change how bequests are made drastically. This section includes definitions from the Texas Estate Code for terms that may arise often in estate proceedings.
- Child — Includes an adopted child, regardless of whether the adoption occurred through an existing or former statutory procedure or an equitable adoption or acts of estoppel.
- Claims — Includes liabilities of a decedent that survive the decedent’s death, including taxes, regardless of whether the liabilities arising in contract or tort or otherwise; funeral expenses; the expense of a tombstone; expenses of administration; estate and inheritance taxes; and debts due to such estates.
- Devise — As a noun, includes a testamentary disposition of real property, personal property, or both; as a verb, means to dispose of real property, personal property, or both, by will.
- Distributee — A person who is entitled to a part of the estate of a decedent under a lawful will or the statutes of descent and distribution.
- Estate— A decedent’s property, as that property exists originally and as the property changes in form by sale, reinvestment, or otherwise; is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent’s representative by the trustee of a trust that terminates on the decedent’s death, and substitutions for the property; and is diminished by any decreases in or distributions from the property.
- Exempt Property — The property in a decedent’s estate that is exempt from execution or forced sale by the constitution or laws of this state, and any allowance paid instead of that property.
- Heir — A person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate. The term includes the decedent’s surviving spouse.
- Incapacitated Person — A person is incapacitated if he or she is a minor; is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, care for the person’s own physical health, or manage the person’s own financial affairs; or must have a guardian appointed for the person to receive funds due the person from a governmental source.
- Independent Executor — The personal representative of an estate under independent administration as provided by Chapter 401 of the Texas Estates Code and Texas Estates Code § 402.001. The term includes an independent administrator.
- Interested Person or Person Interested — An heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and anyone interested in the welfare of an incapacitated person, including a minor.
- Legacy — Includes a gift or devise of real or personal property made by a will.
- Legatee — Includes a person who is entitled to a legacy under a will.
- Minor — A person younger than 18 years of age who has never been married and has not had the disabilities of minority removed for general purposes.
- Net Estate — A decedent’s property excluding homestead rights; exempt property; the family allowance; and an enforceable claim against the decedent’s estate.
- Next of Kin — Includes an adopted child or the adopted child’s descendants and the adoptive parent of the adopted child.
- Personal Property — Includes interest in goods, money, a choice in action, evidence of debt, and a real chattel.
- Real Property — Includes estates and interests in land, whether corporeal or incorporeal or legal or equitable. Does not include a real chattel.
- Representative and Personal Representative — Include an executor and independent executor; an administrator, independent administrator, and temporary administrator; and a successor to an executor or administrator listed in Texas Estates Code § 22.022(a)(1) or Texas Estates Code § 22.022(a)(2).
Types of Estate Planning/Probate Cases in Texas
The Gonzalez Law Group, PLLC primarily focuses on the following kinds of probate and estate planning issues:
Estate Planning/Probate Resources in Harris County
Harris County Probate Courts — Harris County has four different probate courts, all located in the Harris County Civil Courthouse. The first and second probate courts are on the sixth floor while the third and fourth are located on the seventh floor. Visit this website to access dockets and other downloadable information, forms, and handouts.
Harris County Civil Courthouse
201 Caroline St.
Houston, TX 77002
Estates Code | Texas Constitution and Statutes | Texas Legislature — View the full text of all Texas state laws relating to estates of decedents; durable powers of attorney, and guardianship and related procedures. Texas Estates Code § 21.002(b) states that the Texas Estates Code and the Texas Probate Code are considered one continuous statute. The substance of the Texas Probate Code was codified in the Estates Code by the 81st and 82nd Legislatures, and for that reason, the Texas Legislative Council does not publish it.
Real Estate Probate and Trust Law (REPTL) Section the State Bar of Texas — Originally known as the State Bar Committee on Real Estate, Probate, and Trust Law, REPTL is the second oldest section of the State Bar of Texas. Its mission is “to provide support to its members and other attorneys practicing real estate, probate or trust law in Texas.” On this website, you can learn more about section programs, real estate committees, and other information for consumers.
Contact Estate Planning/Probate Attorneys in Houston, TX
Do you need help with a probate or estate planning issue in Harris County? You will want to make sure that you contact The Gonzalez Law Group, PLLC in order to achieve the most desirable outcome for your case.
Our Houston estate planning lawyers help individuals in the greater Harris County area including Pearland, Baytown, Seabrook, La Porte, Pasadena, Galena Park, Friendswood, and many others. Call (832) 530-4070 or fill out an online contact form to have our attorneys provide a complete evaluation of your case during a free, confidential consultation.