DYING WITHOUT A WILL: How will your separate property be distributed?

The distribution of separate property of a person who dies without a will depends on whether it is real or personal property.

Separate property is distributed in this manner:

1. If the decedent is survived by a spouse and children (or descendants of deceased children), then subject to the surviving spouse’s rights with respect to the homestead and exempt personal property:

• Separate personal property passes one-third to the spouse and two-thirds to the children (and the descendants of deceased children).

• Separate real property passes to the children (and the descendants of deceased children) subject to a life estate in one-third of the property in favor of the surviving spouse.  This means that the surviving spouse is entitled to use one-third of the real property during his or her lifetime, and upon his or her death, the children (or descendants) will have full title to the separate real property of the decedent.

2. If the decedent is survived by a spouse but not by any children or descendants, then subject to the surviving spouse’s rights with respect to the homestead and exempt personal property:

• All separate personal property passes to the spouse.

• Separate real property passes one-half to the spouse and one-half to the decedent’s parents or collateral relatives, such as brothers and sisters or their descendants.

• If no parents, brothers, sisters, or their descendants survive, then all separate real property passes to the surviving spouse.

3. If only children or their descendants survive, all separate personal and real property passes to the children or their descendants.

4. If both parents survive, but not the spouse or children or children’s descendants, all separate personal and real property passes one-half to each parent.

5. If only one parent and brothers or sisters survive, separate personal and real property passes one-half to the surviving parent and the remaining one-half is divided equally among the brothers and sisters or their descendants. However, if no brothers or sisters or their descendants survive, then all separate property passes to the surviving parent.

6. If no spouse, children or children’s descendants, or parents of the decedent survive, all separate property is divided equally among the decedent’s brothers and sisters or their descendants.

7. If none of the above relatives survive, then all separate property passes generally to the decedent’s grandparents. If no grandparents survive, the law provides for distribution of separate property to more distant relatives. In Texas, no matter how remotely related one is to a person who dies without a will, potentially he or she is an heir at-law.   Notice that the decedent’s property passes to the State of Texas only if none of his or her heirs, including very remote heirs (such as uncles, aunts, or cousins), are living.  Indeed, the State rarely benefits from the estate of an intestate decedent.

Would the persons you desire to receive your property actually receive it?

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