Wills, Probate, and Estates – What Does It All Mean?

Probate law is the legal mechanism for the administration of a person’s property when they pass away. There is no “first come, first serve” system in place. Rather, the law provides for an orderly distribution of property upon death. In Texas, title to the decedent’s property passes immediately to the beneficiaries under the decedent’s will or to the decedent’s heirs if there was no will in place at the time of death. Probate is the process of proving to a judge the validity of the decedent’s will, settling the estate’s debts, and distributing the decedent’s property in accordance with the will. Courts must be involved in order to protect the rights of the family and those entitled to receive property, including creditors.

An estate consists of all the personal and real property that the decedent owns at the time of death. In Texas, property is characterized as separate or community. Separate property is that property which you owned before marriage or acquired during marriage by gift, devise, or inheritance. It also includes any damages awarded from a personal injury lawsuit, with the exception of those recoveries for loss of earning capacity. Community property is simply therefore all property other than separate property that is acquired by the spouses during the marriage. This characterization of property becomes important when the decedent dies without a will, because it opens the possibility that property will be inherited to family members the decedent might not have wanted.

Thus, there are certainly disadvantages and potential consequences if a person dies without a will. Having a will in place allows you to choose how you want your property to be distributed at death. Since the law does not play favorites with who really “deserves” your property, a will can prevent it from being distributed to an estranged family member. Or, it may simply be because you would rather leave everything to your spouse to support your children, but this may not occur if there is no will. For instance, if one of the children is not a child of the marriage, the surviving spouse will only receive his or her one-half share of the community property and only a one-third interest of the separate property. Disputes can arise if there is hostility between the surviving spouse and the children from the prior marriage…this is certainly not what the deceased spouse would have wanted. Regardless, whatever the reason may be, having a will in place is the best way to safeguard your property upon death.