Reed: Probate when decedent has no will

Sandra W. Reed
Special to the Reporter

Gina’s father, Dan, died without a will. Dan had three children by his first marriage — Gina and her two brothers.

Sandra Reed

Dan and his current wife, Cora, have no children. Cora insists that because she and Dan bought the house after they married, she is entitled to the couple’s home and its surrounding acreage. Although they have a good relationship with their stepmother, Dan’s children want to know how to proceed with probate of their father’s estate and their rights regarding their father’s property.

Determination of heirship for estate with no will

The lawyer Gina consults advises her that a determination of heirship is needed to probate Dan’s estate which will govern who inherits his property. The lawyer first determines that all the property in the estate was acquired following marriage and Dan had no inherited or gifted property, nor did he have any property acquired due to a personal injury. Due to this, he informs Gina that all the property, including the home and surrounding property, is community property under Texas law.

Determination of inheritance of community property real estate with no will

Gina sighs, thinking that Cora is correct in claiming the home and its property. However, the attorney says, Cora is mistaken in believing the house and property is hers alone following her husband’s death. The laws of descent and distribution in Texas provide that the surviving spouse inherits 100% of the community property real estate only if all the children are children of both the deceased and the surviving spouses. Texas Estates Code §201.003(b).

Since Gina and her brothers are children of a prior marriage, they inherit in equal parts their father’s share of the community property real estate and Cora retains her one-half of the community property real estate. Thus, the three children and the stepmother own the property as tenants-in-common.

Cora will have the absolute right to occupy the homestead during her lifetime. Texas Estates Code §§ 102.005 and 353.051.

Determination of inheritance of rest of community property with no will

Gina and her brothers will inherit their father’s half of all other property in the estate, since it is community property. Cora will retain her one-half of the property. If they cannot agree on how to divide this property, the court will likely appoint an administrator who will have to obtain court approval on all dealings with the property and its ultimate distribution.

Sandra W. Reed practices Elder Law in Somervell County, handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed@kbzlaw.com.