Why do I need a will? What happens if I die without a will?
Remember from last week’s column that if you die with a legally valid will, then your property will be distributed according to your wishes as expressed in the will. On the other hand, if you die without a will or if your will is declared invalid, your estate will be considered “intestate” and your property will be distributed according to state law.
In Texas, property is characterized as separate or community. When a person dies without a will, the law determines who your heirs are, and your assets are disposed of according to whether they are classified under Texas law as community or separate property. Separate property is generally that which is owned before marriage or acquired during marriage through gifts or inheritances. Community property is all property, other than separate property, which is acquired by either spouse during the marriage.
How your property will be distributed should you die intestate varies greatly depending on your lineage at the time of your death. Here are a few common examples of how community property is divided under Texas law when someone dies without a will.
If you leave behind a spouse and only children conceived between you and your spouse, your community property will be distributed entirely to your surviving spouse.
If you leave behind a spouse and children, some or all of whom are not conceived between you and your spouse (for example, children from another marriage), then half of your community property will pass in equal portions to all of your children with the other half passing to your surviving spouse.
If you leave behind a spouse and only children from your spouse’s lineage (none of whom have any blood-relation to you), then your spouse will retain all of the community property.
Intestate distribution of separate property is more complex and subject to greater variation depending on the makeup of your family unit. Remember that the easy way to ensure that your estate is distributed as you wish is to have a valid will.
This article appears in November 18 • 2005.