Texas probate courts handle the distribution of a person’s property if they die and leave property that has not been transferred via trust, joint ownership with a right of survivorship, or direct payments. However, not all of a decedent’s property and debt must go through probate. How long does probating an estate without a will take? The answer depends on how difficult it is to divide the decedent’s property and whether the heirs agree on the value assigned to the property. Individuals who need help understanding how long probate takes in Texas without a will—or any other probate issue—should consult with an experienced estate planning and probate attorney.
Probating an Estate in Texas
The Texas Estates Code explains what happens to a person’s property when they die without a will (intestate) and how probating an estate without a will works. In Texas, probate refers to the process that courts take to legally recognize a person’s death and authorizes the distribution of their estate. In essence, the purpose of probate is to transfer the assets out of a deceased person’s name and into the names of the appropriate beneficiaries.
Texas Probate with No Will
Texas law characterizes property as “separate” or “community.” Separate property refers to property that is owned before marriage or acquired during marriage by inheritance or gift. Community property is all other property or assets that either spouse acquires during the marriage.
When a person dies intestate, Texas law determines who the decedent’s heirs are and disposes of assets according to whether the property is community or separate. Texas probate courts do not consider the nature and quality of relationships between an heir and a decedent. Instead, courts solely look at how closely the heir was related to the decedent.
Distributing Community Property Without a Will
Real and personal community property is distributed in the following ways.
- If the decedent is survived by a spouse and children (and all of the surviving children are also children of the surviving spouse), then the decedent’s property goes to the surviving spouse.
- If the decedent is survived by a spouse and children, but not all of the surviving children are also children of the surviving spouse—then the surviving children should receive the decedent’s share in one-half of the community property. The surviving spouse retains the remaining half of the community property.
Further, under Texas law, in these situations, the surviving spouse maintains certain rights, such as the right to use and occupy the marital homestead during their life.
Distributing Separate Property Without a Will
Some examples of the distribution of real and personal separate property include the following.
- If the decedent is survived by a spouse and children (or the descendants of any deceased child), then one-third of the decedent’s property passes to the surviving spouse and two-thirds goes to the children. Moreover, the separate real property passes to the children subject to a life estate in one-third of the property in favor of the surviving spouse.
- If the decedent is survived by a spouse and no children, then all separate personal property passes to the surviving spouse. In addition, the decedent’s parents or collateral relatives may be entitled to some share of the property.
- If the decedent is survived by children (or their descendants) and no spouse, then all separate personal and real property passes to the children or descendants.
- If the decedent is survived by parents, no spouse, and no children, then half of the separate property passes to each parent.
In cases where there are no available heirs, then the decedent’s property may be transferred to the State of Texas. Probating an estate without a will is a cumbersome and often lengthy process. It is important that individuals speak with an attorney to determine all of their options before becoming involved in the probate process.
Issues Probating Estate Without a Will in Texas
The main drawbacks of passing without a will include undesired results, costs, and delay.
Dying without a will creates risks that the property will not pass as the decedent intended. Further, in Texas, the law presumes that a gift to an heir is not an advancement of their inheritance. For example, this may present problems when a parent with three children makes a lifetime gift to one child with the intent that the gift is an advancement of their inheritance. If the parent dies intestate, the court will distribute the remaining estate amongst the three children, even though one child has already received their inheritance.
Moreover, dying intestate can constrict assets for an indeterminate amount of time. Probate court proceedings often include hearings to determine heirs, administrator appointments, and ownership transfers. Additionally, disputes among heirs can delay a resolution. Sometimes, court costs and legal fees can deplete the estate, leaving heirs with little inheritance.
The bottom line is that when it comes to figuring out how long probate takes in Texas without a will, every situation is different. However, regardless of the situation, consulting with a probate lawyer is your best first step.
Are You Looking for an Attorney to Assist with Probate in Texas with No Will?
If you were named as the executor of a loved one’s estate and are considering your probate options, it helps to discuss your situation with an attorney. At Robbins Estate Law, we have a dedicated team of Texas probate lawyers with extensive experience helping guide executors through the probate process. We can help you determine the most efficient and effective way to usher an estate through probate, minimizing your stress and saving you time and money. To learn more about how we can help, contact us today.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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