In Texas, the rules of inheritance and intestate succession are constantly changing. If you’re a resident of Texas, it’s important to be informed about the new laws and how they affect your inheritance rights.
This article will provide an overview of the new Texas inheritance laws and how they will affect your intestate succession in 2023.
We’ll cover important topics like who inherits your property if you die without a will, how to protect your assets, and more.
Read more about estate planing as a whole in A Complete Guide on Estate Planning
Read on to learn more and make sure you are prepared for these changes in 2023.
So you’ve been searching the internet to learn about Texas inheritance laws, and all you find are law and estate planning firms that use terms that make no sense. All were leaving you with more questions than you have answers to and wondering:
- What is the intestate definition? Or intestate succession and intestacy laws? Is inheritance community property in Texas? I keep seeing those words and am not quite sure what they mean…
- What’s the estate administration process – transfer of property after death without a will in Texas? What do we do with personal belongings after death without a will?
- Are there capital gains on inherited property in Texas or not?
- How long do you have to file probate after death in Texas? What is the Texas probate law?
You just want information on the Texas inheritance laws. Why are there so many law firms on the internet that just end up confusing you more than answering your questions? So that you will pay them thousands or tens of thousands of dollars to do it for you. As a former financial planner for 30 years, let me help guide you.
The good news is, I will explain everything to you, step by step and in plain English. You will know everything you need to know about Texas inheritance laws: what this all means, how it affects you, and what you need to do next, step by step.
New Texas Inheritance Laws – What You Should Know in 2023
- We will look at the cost of the probate process without a will in Texas and how long you have to file probate after death.
- We will look at and explain Texas inheritance law with no estate planning documents.
- Texas law of descent and distribution(don’t worry, I will explain it all).
- I will show you the Texas intestacy chart and Texas intestate succession charts. The process of how things will be distributed to the family if you have a will and if you don’t have a will. It may surprise you to find out the answer to a common question – does a spouse inherit everything in Texas?
- Then a look at selling inherited property in Texas. This could be land, a home, or anything inherited could actually be considered property.
A Simplified Summary Of Texas Inheritance Laws
I. What does it mean to die intestate or an intestate estate?
When a person passes away, the simple question you need to know is, did they have a will or no will?
* If a person dies and had a will, that is called “testate” (with a will)
* If when a persona dies they did not have a will, that is called dying “intestate” (without a will)
* Big words, but pretty simple so far. With a will – testate, without a will = intestate.
II. What are Texas intestate succession laws, and what do they mean?
I will get into the details later in the article, but again to keep things simple and straightforward.
* If you have a will (testate), your assets will go to who you chose in the will.
* If you did not have a will (intestate), the state of Texas has written a will for you already. Let me explain. If you are a resident of Texas and die without a will, your assets will go through the Texas intestate succession laws. What this simply means is that your assets will go to your surviving family, in an order that is predetermined by the state of Texas. For example, certain government predetermined percentages will go to your spouse, children, parents, siblings etc.
- If you prefer to have some control over who gets what, or who does NOT get what – GET A WILL TODAY!!!
- If you prefer to not let the government and courts decide who gets your stuff – GET A WILL TODAY!!!
- If you prefer your family gets as much of your assets, and the government gets as little as possible in probate and fees – GET A WILL!
III. What does probate and non probate assets mean?
Probate is a process where the courts get involved to make sure that your assets are properly being distributed to people or companies that you owe funds to, and eventually to your family to inherit. More details below, but this is a summary:
*Non probate assets are assets that have a named beneficiary on them and will pass directly to the other person to inherit. Or an asset that you owned jointly with someone. This usually takes a few weeks to complete.
*Probate Assets are the assets that have to go through the will to determine who inherits what. This can be a long and costly process. Don’t have a will – it will likely be even longer and more costly.
MAKE A WILL ONLINE – Get Peace Of Mind in Minutes With an Online Will
A Texas Will – Probating a Will in Texas
Congratulations on being prepared with an Estate Plan and making things easier for your heirs; you have a legally binding will, maybe a trust, named an executor of your Estate. In most cases, in Texas, that means things will go exactly how you wished for them to go, and inheritance laws in Texas won’t apply to your family’s situation. You just need to settle the will within four years.
Does a will have to be probated in Texas?
According to the Texas inheritance laws, if the estate size is below $75,000 in TX, it will not be required to go through probate. Instead, heirs file a small estate affidavit in the county and court that has jurisdiction of the deceased parent after 30 days, and the court will disperse the property.
According to the Texas inheritance laws, estates over $75,000 in Texas must go through probate to be sure that the will is being executed and followed properly. This is to protect the heirship and be sure that debt and liabilities are properly paid as well.
How to probate a will in Texas?
The probate estate process is used to determine the validity of the decedent’s will, pay the decedent’s debts, and distribute the decedent’s assets to their beneficiaries. Again, according to the Texas inheritance laws – If the decedent had a will, the probate process would begin by
- The executor of the will is filing a petition with the court. The petition must be filed in the county where the deceased person resided.
- Serve notice to all interested parties. All interested parties must be given notice of the probate proceedings.
- Application to appoint a personal representative. The personal representative is responsible for handling the deceased person’s Estate.
- Collect the deceased person’s assets. The personal representative is responsible for collecting all of the deceased person’s assets.
- Pay the deceased person’s debts and expenses. The personal representative is responsible for paying the deceased person’s debts and expenses.
- Distribute the deceased person’s assets. The personal representative is responsible for distributing the deceased person’s assets to the beneficiaries.
* Just click on any of the questions or the + sign below to read more details
What is the cost of probate in Texas?
The cost of probate in Texas can vary depending on the size and complexity of the Estate. The filing fee itself is only about $400, but generally speaking, the cost of probate in Texas could be somewhere between 2% and 4% of the total value of the Estate.
Probate can be a lengthy and expensive process, so it is important to consult with an experienced probate attorney to determine whether probate is necessary in your particular case.
The cost of probate in Texas will probably be less if there was a will than without a will – since probate with a will can be more complicated and time-consuming.
Letter of testamentary Texas no will
Texas inheritance laws say that if there is no will in Texas, the court will appoint a representative to administer the Estate. This is typically the surviving spouse, but if there is no surviving spouse, it may be a natural child or other relative. The representative will need to file a petition with the court and provide proof of death, such as a death certificate.
Once the petition is filed, the court will issue a letter of testamentary, which gives the representative the authority to act on behalf of the Estate. The representative will then be responsible for collecting the assets, paying the debts, and distributing the remaining assets to the heirs.
How long do you have to file probate after death in Texas?
Texas inheritance laws state that in Texas, you have four years from the date of death to file a probate.
How long does probate take with a will in Texas?
How long does probate take without a will in Texas?
When someone dies without a will in Texas, their Estate must go through probate. Probate is a legal process that is overseen by a court. The court will appoint an administrator to handle the Estate. The administrator will inventory the Estate, pay debts, and distribute the assets to the heirs.
The probate process can take several months to several years to complete. If there are any complexities, such as no will or someone is contesting the will – probate can take several years.
Texas Inheritance Laws and Probate: An Overview – Nolo
Does a surviving spouse need probate in Texas?
If a person dies without a will in Texas, their spouse will still need to go through probate in order to inherit their assets. There are Texas surviving spouse rights, but the surviving spouse will still need to go through probate in order to have their ownership of the property recognized by the court. This is because Texas is a community property state.
Is inheritance community property in Texas?
According to Texas inheritance laws, community property in Texas means that all property acquired during the marriage is considered to be jointly owned by both spouses (joint tenancy).
What is a Life Estate?
A life estate spouse residence is a home that is owned by a married couple, but the ownership is held in the name of one spouse. The other spouse has the right to live in the home for as long as they are married, but they do not own the home. This type of ownership can be beneficial for couples who want to keep their home in their family, or in the estate for life, but it can also be a financial burden if one spouse dies or the couple gets divorced. a good estate attorney can help you with this.
How to probate a will in Texas without a lawyer?
Texas inheritance laws allow the probate estate process to be done without a lawyer, but it is often helpful and advisable to have one. So let’s look at a high-level way how to probate a will in Texas yourself.
- The first step in probating a will is to file it with the court. The court will review the application to appoint an executor. The executor is responsible for gathering the deceased person’s assets, paying their debts, and distributing the assets to the heirship.
- If the deceased person had a will, the executor would follow the instructions in the will. If the deceased person did not have a will, the executor would follow the laws of intestacy succession in Texas. Intestate succession in Texas is the order in which the deceased person’s assets will be distributed if they did not have a will.
- Intestate Definition: Intestacy succession is the legal process that determines who will inherit the property of a person who dies without a will. The laws of intestacy succession vary from state to state, but typically, the deceased person’s spouse and biological children will inherit the property. If the deceased person does not have a spouse or biological children, the property will typically go to the deceased person’s parents or other relationships.
- Once the executor has gathered the assets and paid the debts, they will file a final report with the court. The court will then issue an order to distribute the assets to the heirs.
If you are an heir and you do not agree with the way the executor is handling the Estate, you can file an objection with the court. The court will then hold a hearing to determine if the executor is doing their job correctly.
You can quickly see how complicated settling an estate can be when there is a mother, father, husband widower or wife widow, brother, sister, aunt, uncle, natural child, etc can all be involved. Whether the estate is contested or uncontested, the probate proceedings can get complicated without a will to help settle who has legal rights to the estate.
- Probating a will can be a complex process, but it does not have to be done with a lawyer in Texas.
Non-probate assets: Retirement accounts such as IRA’s, 401ks, life insurance policies, jointly owned assets like a bank account, and other assets that transfer “by contract” (had a named beneficiary) will bypass the will and probate. If you DO WANT these assets probatable – I have seen people name their Estate the beneficiary.
* Just click on any of the questions or the + sign below to read more details
No will in Texas? Dying Without a Will in Texas
We all make a decision to predetermine how our assets will be distributed to our heirs. For most, having a will dictates how our assets will be distributed. By choosing not to have a will – you have decided to leave it up to the state of Texas to decide for you. The assets need to follow the Texas inheritance laws and go through the Texas intestate succession process.
If you die intestate, your Estate will be inherited by some combination of the deceased’s spouse, kids, and other relatives. First, the state of Texas will divide all inherited property into two categories: Texas inheritance law on separate property and community property.
Texas Inheritance Laws on Separate Property in Texas
There is an old joke in marriage, “what’s yours is mine and what’s mine is mine .”Well, it doesn’t quite work like that…
Separate property in Texas would be considered property owned solely and individually and considered either personal property or real property.
Land, property, and anything affixed to the property is considered “real property.”
Personal property is considered anything not attached to the property. This could include your investment portfolio, cash, your cars, etc.
Any gifts or inheritance you receive during the marriage, as long as it remains separate and not commingling, can remain personal property.
If one or more children are not from the surviving spouse – ⅔ go to the kids and ⅓ to the surviving spouse.
No kids? Thanks to Texas surviving spouse rights – all inherited personal property goes to the surviving spouse, and the real property gets divided among the surviving spouse, parents, and siblings of the decedent.
An affidavit of heirship can help establish ownership of property when the rightful owner dies without a will and has no known heirs.
MAKE A WILL ONLINE – Get Peace Of Mind in Minutes With an Online Will
Texas Inheritance Laws – Is Inheritance Community Property in Texas?
Any property that is received during a marriage is considered community property. This means it is owned joint tenancy (joint accounts) by both spouses. Any personal property that is then commingled, such as an inheritance – now falls into a gray area.
- Again, thanks to Texas surviving spouse rights, all inherited community property goes to a surviving spouse in Texas. Unless one or more children are not the surviving spouses – then Texas will give the community property to the kids.
Married Individuals With or Without Children in Texas Inheritance Law
Texas Intestate Chart: Married
Marriage: Spouse, Community Property and Joint Tenancy
When a married person dies intestate in Texas, their spouse will inherit all of their community property. If the deceased spouse only had separate property, then their spouse will inherit that as well. If the deceased spouse had both community property and separate property, then their spouse will inherit all of the community property and half of the separate property. The other half of the deceased spouse’s separate property will go to their descendants.
Texas Intestate Chart For Married Couple
Follow the charts below for further details:
Texas Descent and Distribution Chart and Intestate Chart Married
| Texas Intestate Chart: Married | |
| If you die with… | Then This is who will inherit the property |
| Married – but no parents, siblings, or children | The entire estate goes to the spouse |
| Married and the spouse has children with the deceased | Community Property: The surviving spouse will inherit the community property |
| Real Property: The surviving spouse will inherit all real property for life, which will then go to the children | |
| Separate Property: 1/3 to the surviving spouse, and the remainder of the estate to the children | |
| If the surviving spouse is not the parents of the deceased children | Community Property: The deceased’s share of community property goes to the children |
| Real Property: The surviving spouse will inherit all real property for life, which will then go to the children | |
| Separate Property: 2/3 to the surviving children, and the remainder of the separate personal property to the surviving spouse | |
| Married with no children but surviving parents | Community Property: The deceased’s share of community property goes to the surviving spouse |
| Separate Real Property: The surviving spouse will inherit 50%, the other half of the separate real property will go to the parents | |
| Separate Property: All of the separate personal property to the surviving spouse | |
| Married with no children, surviving siblings but no surviving parents | Community Property: The deceased’s share of community property goes to the surviving spouse |
| Separate Real Property: The surviving spouse will inherit 50%, the other half of the separate real property will go to the surviving siblings | |
| Separate Property: All of the separate personal property to the surviving spouse |
Single People Without Children in Texas Inheritance Law
The estates of legally single intestate descendants without surviving children (non marriage) go through a much more lengthy process of inheritance under Texas law. Follow the Texas intestate charts below to get a better understanding:
Texas Intestate Chart For Single People
Feel free and share or post on your site, but please attribute Intestate Chart Unmarried to michaelryanmoney.com
Inheritance laws Texas Intestate Chart single/no marriage
Texas Intestate Chart Single
Further info on intestate succession in Texas
Termination Of Parental Rights
Divorced, or Going Through a Divorce
No one gets married thinking that their marriage will end in divorce. Unfortunately, for many couples in Texas, divorce is a reality. Inheritance law in Texas can be complex, and if you are going through a divorce, you need to be aware of how it may affect your inheritance.
When a person dies without a will in Texas, their estate is subject to intestate succession laws. This means that the court will determine how the deceased person’s assets will be distributed. If the deceased was married, their spouse will typically inherit the majority of the estate. However, if the couple was divorced or going through a divorce, the inheritance laws may be different.
If a couple is divorced or legally separated, the ex-spouse is not typically entitled to any of the deceased’s assets. However, there are some exceptions to this rule. If the couple had children together, the ex-spouse may be entitled to a portion of the estate. Additionally, if the couple owned real estate together, the ex-spouse may be entitled to a portion of that property. A previous marriage, community law marriages and community property presumption can complicate matters further.
The inheritance laws in Texas can be complex, and it is important to seek legal guidance if you are dealing with the death of a loved one. An experienced attorney can help provide you legal advice through a difficult time, and navigate the intestate succession process and ensure that your rights to estate assets are protected.
Factors that could further complicate an intestate estate
- Common law marriages
- Minor children instead of adult children
- Illegitimate children
- Adoptive parent
- Family squabbles
- Unknown heirs
- Ensuring the proper county courts
- Complicated estates
- 1st marriage
- Blended family
- Community estate and community property law
- transfer on death deeds
- Settlement at death bank accounts
- Contingent beneficiaries
Things that can help minimize the issues:
- develop an attorney client relationship with a good estate planning attorney for advice and legal options and prepare legal documents (not a DIY estate plan)
- proper estate affidavits
- not dying without a will or intestacy
- named beneficiaries on your insurance policies
- properly title your real estate and property and other estate assets
- proper appointment of an executor and probate administration.
If there are family dynamics or family situations that you think may complicate matters, hire a good family lawyer to ensure that family squabbles don’t cause legal fights over your inheritance money.
Now That You Settled The Estate & Inherited Assets (aka property), Now What?
- Determine the value of the inherited property by speaking with a realtor, getting an appraisal of the home, or getting an estimate at Zillow.
- Find out if the house, real estate or property has a mortgage or lien and if insurance and property taxes are paid up to date.
- If there are other family members involved in inheriting the property, find out if everyone agrees to sell the home or if someone’s share needs to be bought out.
What to do with a pay raise, windfall or an inheritance?
Death Taxes
There are typically three different taxes you will be concerned about when you inherit property in Texas:
- Estate Taxes: These are the taxes that are paid on behalf of the Estate before anyone inherits the property. The Federal Estate tax doesn’t kick in until the value of the Estate is valued at over $12.92 million in 2023. Any amount under that will pass Estate tax-free to the heirs.
- Inheritance Taxes: These are the taxes that the heirs would have to pay based on the value of the Estate that is being inherited. Only a few states have an inheritance tax – and Texas is not one of them. So you should not owe any inheritance tax in Texas, but obviously, confirm this with your tax advisor.
- Capital Gains Taxes: This tax is has no relationship to inheritance – it is a tax we all have to pay when we make a profit on an asset that has appreciated in value. You do not pay this tax when you inherit assets, but when you sell the asset (for a gain)
For example: if you inherit a home or property from your parents:
- There is typically no reason for you to owe estate taxes unless the Estate is valued at over $12 million, but confirm this with an estate and tax advisor.
- Texas does not have an inheritance tax, so again you should be okay here as well.
- You do not owe any capital gains tax when you inherit property, not until you sell inherited property.
There are no Texas inheritance taxes to deal with, but instead, you have to worry about Federal taxes to consider. You CAN take advantage of the ‘step up in basis for the cost basis of the house or property. This puts the cost of the home to the death of the previous owner. This means you would pay a lower capital gains tax when the inherited property is eventually sold.
For example, the person who passed away paid $1 for the property, and it is worth $1,000,000 the day they passed away. The inherited property then sells for $1,200,000. Ordinarily, you would owe taxes on the difference from the selling price compared to the original purchase price. The step up in basis allows the purchase price to adjust to the date of inheritance instead – drastically reducing your capital gains tax owed.
Once you have decided to sell the home or property and completed the steps above, it is now time to prepare to sell the house.
- Hire a realtor or real estate agent. You could attempt to sell the home yourself as well
- Price the property appropriately.
- Clear the inherited property of personal belongings, and prepare the home to be listed for sale.
- List the house for sale.
- Continue to pay any mortgage payments or bills associated with the property until after you close on the property.
FURTHER READING BASED ON YOUR INTEREST IN THIS ARTICLE
- Find Out Now – Is Inheritance Taxable in 2023?
- Capital Gains on Inherited Property in Texas
- Transfer of Property After Death With and Without a Will
- State Capital Gains Tax: Which States Have the Highest Taxes
When a person dies without a will in Texas, their estate is subject to intestate succession. This means that their assets will be distributed according to a set of state laws. These laws vary from state to state, but generally, the estate will be divided among the deceased person’s spouse and children. If the deceased person was not married and had no children, their estate will be divided among their parents or other relatives. The intestate succession laws in Texas are designed to fairly distribute a person’s assets in the event that they die without a will.
Other more detailed reading that may interest you as well regarding Texas inheritance laws: However, these laws may not always result in the distribution that the deceased person would have wanted. For example, if a person dies without a will and they are survived by their spouse and children, their estate will be divided equally between their spouse and children.
However, if the deceased person had wanted their spouse to inherit their entire estate, this would not be possible under the intestate succession laws. It is always best to consult with an estate planning attorney to discuss your specific situation and to ensure that your wishes will be carried out after your time of death.
Conclusion
The future of Texas inheritance laws is uncertain but one thing is for certain: knowledge is power.
With the new laws set to take effect all the time, it is more important than ever to understand your rights as a potential heir and educate yourself on the new Texas inheritance laws and intestate succession rules.
Knowing your rights and the legal implications of Texas inheritance laws can help you make informed decisions and ensure a smooth transition of your inheritance.
Get informed and stay informed – the future of Texas inheritance laws awaits!
- General Information – Probate – New Texas Inheritance Laws
- Other Common Texas Probate and Texas Inheritance Laws Questions
- Legal Zoom Texas Inheritance Laws and Cases
- Texas Inheritance Laws – EST § 201.001. Estate of an Intestate Not Leaving Spouse
- The Intestacy Manual For Proceedings In Texas Probate Courts
- Texas Inheritance Laws and Intestate Succession
- Texas Inheritance Laws and Estate Planning Handbook
- Intestate Inheritance Rights for Adopted Persons
*If you are in the middle of trying to settle an estate, I cannot stress enough the importance of not solely relying on any information you read on the internet – including this article. This is just to give you a primer for where to begin and what to expect. It is vitally important that you speak with an estate planning attorney, tax advisor, financial advisor, etc., before making any decisions.
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Note: The content provided in this article is for informational purposes only and should not be considered as financial or legal advice. Consult with a professional advisor or accountant for personalized guidance.
