Intestacy & Community Property

Intestacy & Community Property

Probate Lawyer in Dallas, TX

Intestacy refers to the state or condition of dying without a will. Considerable problems may exist when a person passes away without leaving any legal stipulations as to how they wish for their property to be divided and distributed upon their death. In these circumstances, the property will be subject to the state's laws of intestacy. These laws call for the property to be passed along to the decedent's next of kin.

In Texas, spouses and children of the deceased person are generally those individuals who will be identified first in the establishment as legal heirs -- or a decedent's next of kin. When no spouses or children exist, the situation can become complicated. Generally, in these situations the state will look to surviving parents or siblings of the deceased person to determine who is next in line for the property left by the loss of their family member. The situation can again get complicated when the decedent has children from a previous marriage - a condition that could call for a different plan of division.

Understanding Community Property

Community property is, generally, speaking, any property that is acquired during marriage. However, as with most rules there are numerous exceptions. Whether property is separate or community is an issue that frequently arises after the death of someone who has been married more than once. And, whether property is separate or community will impact who receives what when the person dies without a will. Since Texas is one of only nine states to currently recognize community property, you should make every effort to ensure that the attorney you select to help you handle your case in Texas is one who is well versed in the issues surrounding estate administration and community property.

The Law of Descent and Distribution

Intestate succession statutes, also referred to as the law of intestacy, will be used to divide and distribute the remaining property of a person who has passed and left no will. Assuming the value of the decedent's property is greater than the total amount of their enforceable debts (if any exist) and the expenses associated with the costs of the funeral and final illness, the law of intestacy will be applied to the situation.

The Court will determine who the decedent's heirs are when requested to do so by a person interested in the estate - generally a family member. Then, if needed, the Court will appoint some who will assume the responsibility of appropriately distributing the property of the person who died without a will.

Partial Intestacy

One can have a valid will that does not dispose of all of their property. If that occurs it is described as a partial intestacy. The property that is disposed of under the will would be distributed to those named in the will and the property that is not disposed of under the will would go to the decedent's heirs at law. Texas courts are reluctant to recognize partial intestacies, but when they occur they will need to be addressed appropriately.