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What are the Consequences of Dying Without a Will?

McNair Dallas Law

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When you die, a section of law known as estate and probate law governs how your assets are distributed.

Someone who dies (the “decedent”) with a legal will is known to have a testate inheritance. As such, their assets are distributed according to their will. A person who dies without a legitimate will has an intestate estate. Their assets are distributed according to the laws of inheritance.

Yahoo’s recent article, “What Happens If I Die Without a Valid Will?” says that estate planning is a local area of the law, so specific rules governing estate planning vary greatly from state to state.

If You Have a Valid Will

When you die, all of your property is called your estate. If you die with a valid and enforceable will, then your estate is distributed in the following way:

  1. First, all attorney’s fees related to managing your estate are set aside for payment;
  2. The person managing your estate (the executor) then pays any debts that you had with the assets in your estate;
  3. Finally, after paying off all debts, your estate is distributed according to the instructions in your will.

Liabilities don’t transfer through an estate, so while you can inherit someone’s property, you can’t inherit their debts. However, debts can affect an inheritance in several ways. The first case is when liabilities transfer with the property. Therefore, if the decedent owed unpaid property taxes or a mortgage on their house and then left you that property if you wanted the house, you’d also have to take responsibility for paying those debts. If you don’t, the executor will sell the house, settle the debts and transfer any remaining money to you.

Second, liabilities can reduce a potential inheritance. Here, if someone leaves you $100,000 in their will but also has $40,000 in unpaid debts, you’d only get $60,000 because that’s what would be left. If the debts exceed the estate’s value, the individual dies insolvent, and their heirs would get nothing.

Other than managing liabilities like debt and taxes, a person can use their will to distribute their assets in almost any way they want. It’s important to understand this because many think family members automatically have a right to inherit money or property. This isn’t so.

If You Don’t Have a Valid Will

If you die intestate, this means that you died without a valid will in place. This can mean either that you had no will or that you had one, but it was deemed unenforceable for some reason.  Intestate inheritance is governed by state laws known as the laws of succession or the laws of inheritance. Intestate estates are overseen by the probate courts.

Handling Intestate Estate

An intestate estate goes through the same three-step process as a testate one. Attorneys get paid first, although this will rarely be relevant. Debts, taxes, administrative fees and other legal liabilities are paid second. Thirdly, heirs receive their portions.

In Texas, the Estates Code distributes assets on the basis of “closeness”. Essentially, close relatives inherit before distant relatives in “tiers” of inheritance. For example, if a person leaves behind:

  • Spouse, no children, no parents – The Spouse inherits 100% of the remaining estate.
  • Spouse, children, no parents – The Spouse inherits 100% of Community Property, 33% of the Deceased’s Personal Property, and the right to real estate.  The children split the remainder evenly.
  • Spouse, no children, parent(s) – The Spouse inherits 100% of Community Property, and the Deceased’s Personal Property, and 50% of the Deceased’s Real Estate.  The Parent(s) receive 50% of the Deceased’s Real Estate.
  • No Spouse, children – The Children divide the remaining estate evenly between them.

The Texas Estates Code goes into great detail describing a variety of situations in which an estate will be distributed.  If someone dies intestate and they have no living legal heirs, their assets go to the State of Texas.

Most people would prefer to determine who should inherit their estate, rather than leave it up to the state.  An experienced Elder Law Estate Planning Attorney can help ensure your assets are distributed according to your wishes.  Contact our office today to get started.

Reference: Yahoo (Jan. 27, 2023) “What Happens If I Die Without a Valid Will?”

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