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Case Study: Intestate Succession

After retiring from the military, Mrs. Smith was on disability benefits from the Veterans Administration. When she passed away from stage 4 cancer, she didn’t have a will. Mr. Smith wondered what the probate process was when an estate is without a will?

Probate is a legal process that occurs after someone dies. It involves collecting the decedent’s assets, paying their debts and taxes, and distributing the remaining assets to the beneficiaries or heirs.

The probate process in Texas can be complex and time-consuming, but it is necessary to ensure that the decedent’s estate is properly handled and distributed.

Probate Process in Texas

When someone passes away in Texas without a will, it’s called dying intestate. This means that the deceased person’s property will be distributed according to the state’s intestacy laws. These laws are a set of rules that dictate how a person’s property will be distributed when they die without a valid will.

The first step in the probate process for Mr. Smith is to file an application with the probate court. In this case, Mr. Smith will need to file an application for administration since his wife did not have a will. The court will then appoint an administrator to manage the estate.

When there is no will, the court will appoint an executor to oversee the distribution of the estate according to the state’s intestacy laws. The executor’s responsibilities include identifying and collecting the assets of the estate, paying the estate’s debts and taxes, and distributing the remaining property to the deceased person’s heirs. The executor is also responsible for filing the necessary legal documents with the court and ensuring that all the estate’s affairs are handled properly.

Creating an Estate Account Under Texas Probate Law

After being appointed as administrator, the first task is to create an estate account. An estate account is a bank account that is opened in the name of the estate. This account is used to deposit any income earned by the estate, such as rental income or interest on investments, as well as to pay any expenses related to the estate, such as legal fees, funeral expenses, and taxes.

In this situation, the account will be used to receive payments due to the estate. For example, Mrs. Smith received some checks made out to her estate, these will be deposited into the estate account. The estate account will also be used to pay any bills or expenses related to the estate, such as the mortgage payment.

According to the Estates Code, a surviving spouse of a person without a will that didn’t have any children is entitled to all of the personal estate. In Texas, married couples have two categories of property under the law: community property and separate property. Community property refers to assets acquired by either spouse during the marriage, while separate property includes assets obtained by a spouse before the marriage, as well as any gifts or inheritances received, even if they were acquired during the marriage.

Mrs. Smith and her husband had a joint mortgage. Since the mortgage is in both names, Mr. Smith will need to continue making the mortgage payments to avoid default. He can use the estate account to pay his portion of the mortgage payment and any payments due from Mrs. Smith’s portion will need to come from her assets.

However, Mr. Smith should consult with the mortgage company to ensure that they will accept payments from an estate account. If the mortgage payments cannot be made from the estate account, Mr. Smith will need to make the payments from his own funds.

Distribution of Assets

Once the estate account is established and bills are paid, the administrator distributes the remaining assets to the heirs. In Texas, if someone dies without a will, their assets will be distributed according to the state’s intestacy laws.

Since Mrs. Smith did not have a will, her assets will be distributed to her surviving spouse, Mr. Smith. If Mr. Smith were to predecease Mrs. Smith, her assets would be distributed to Mrs. Smith’s father and mother. This is only because Mrs. Smith didn’t have children. If she did have children, her assets would be distributed equally among them.

The Takeaway

Losing a loved one is a difficult experience. The probate process can add stress and confusion to an already emotional time. It is crucial to have a will in place to ensure that your assets are distributed according to your wishes. Without a will, the state’s intestacy laws will determine how your assets are distributed. If Mrs. Smith had a will in place, the probate process would have been much easier for her husband.

In this case, Mr. Smith will need to work with an attorney to file the application for administration, establish an estate account, and distribute the assets according to Texas law. Working with an attorney, Mr. Smith can ensure his wife’s estate is properly handled and that he receives the assets he’s entitled to.

To avoid intestate succession from taking place, it is important to create a valid will. Our top Houston Probate Attorneys provide estate planning services. Contact us now and book a FREE consultation with one of our top estate planning attorneys.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including help with estate planning. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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