Wills

First of all a determination must be made as to the community property or separate property character of the assets of the estate. Generally, separate property is all property that the Decedent owned before marriage, all property acquired by the Decedent in another state during the marriage that is not community property under the laws of that state, and all property received by the Decedent at any time by gift or inheritance. All other property is community.

COMMUNITY PROPERTY

After September 1, 1993, upon the intestate death of one the spouses of the marriage, the decedent's one-half (1/2) community interest passes to the surviving spouse if:

(1 ) The deceased spouse had no surviving children, or (2) All surviving children of the deceased spouse are also children of the surviving spouse (e.g. a one marriage situation). In either example, the surviving spouse gets all of the community property. The surviving spouse retains her one-half (1/2) community interest, which already belongs to her, and she inherits the other one-half (1/2) from the deceased spouse.

Upon the intestate death of one of the spouses of the marriage, if a child of the deceased spouse survives the deceased spouse and the child is not a child of the surviving spouse (e.g. decedent's child by his first marriage), then the decedent's one-half (1/2) community interest passes to all of his children, both of the first marriage and the second, rather than the surviving spouse. The Decedent's surviving spouse retains her one-half (1/2) of the community property and the children collectively divide the Decedent's remaining one-half (1/2) of the community property.

SEPARATE PROPERTY

If the Decedent was survived by a spouse and by children, the Decedent's surviving spouse inherits one-third (1/3) of the personal property and receives a life estate in one-third (1/3) of the real estate, and the children divide the remaining two-thirds (2/3) of the personal property and receive all the real estate subject to the surviving spouse's life estate.

If the Decedent was survived by a spouse but had no children, the Decedent's surviving spouse inherits all personal property and one-half (1/2) of the real estate, and one-fourth (1/4) of the real estate goes to the Decedent's father and one-fourth (1/4) goes to the Decedent's mother. If only one parent survives, that parent receives one-fourth (1/4) of the real estate and the other one-fourth (1/4) is equally divided between the Decedent's brothers and sisters and their descendants (referred to hereinafter as "brothers and sisters" for simplicity). If no brothers and sisters survive the Decedent, then the surviving parent inherits a full one-half (1/2) of the real estate. If there is no surviving parent, the brothers and sisters divide that one-half (1/2) of the real estate. Only when the Decedent is not survived by parents or by brothers and sisters will the spouse inherit all the real estate.

If the Decedent had no surviving spouse, but had children, the real estate and personal property is equally divided among the children.

If the Decedent had no surviving spouse and no children, the Decedent's parents and perhaps brothers and sisters are next in line. Each of the Decedent's surviving parents inherits one-half (1/2) of everything, and if there is only one parent surviving, that parent still inherits one-half (1/2) of everything while the other one-half (1/2) is equally divided among the Decedent's brothers and sisters. If no parent survives, the brothers and sisters inherit everything. If there are no brothers and sisters, the surviving parent inherits everything.

There are provisions in the law for the disposition of property if the Decedent was not survived by a spouse, or by children or their descendants, or by parents, or by brothers and sisters and their descendants, but these provisions are even more complicated and are beyond the scope of this paper.

The distribution of property as set forth in the preceding paragraphs is determined by reference to the Texas Laws of Intestate Succession and the Laws of Descent and Distribution as provided by the Texas Probate Code, Sections 38 and 45.

You may ask yourself the question, why do I need a will if there are laws such as Section 38 and 45 of the Texas Probate Code? The answer to that question is simple. In the State of Texas, the probate procedures are greatly simplified in comparison with other states. With a properly executed will, with the proper terms set forth therein, the probate procedure can be conducted as an "Independent Administration." as opposed to a "Dependent Administration," required in many states. The person who dies intestate, or without a will, in Texas, with a substantial estate, will burden his beneficiaries with the requirements of a dependent administration requiring constant court supervision. This procedure requires a bond, is very costly, and time consuming for all parties involved.

With a properly drafted will, an Independent Administration can be used. The beneficiaries of the estate of a person dying in the State of Texas are merely required to have a brief court appearance to prove the will, followed by the filing of an inventory, appraisement and list of claims. All other probate matters involved in an independent administration are taken care outside of the court's supervision. This leads to a very economical and cost effective procedure.

Another major reason for an individual to have a will is that parents of minor children can, in the event of the death of both parents, avoid a very costly guardianship procedure by having a trust set up as a part of their will. Without such a testamentary trust, the minor children of the deceased parents would have to resort to a dependent guardianship, another costly court supervised probate procedure.

Another reason is that most married couples in the State of Texas will list their surviving spouse as the primary beneficiary of all their property. This, of course, can be accomplished by a simple will. As you can see from the above reference to the intestacy laws in the State of Texas, a couple with children from previous marriages could not accomplish that desire under the intestacy laws of this state.

Still another reason is that persons having substantial gross estates will additionally benefit from the use of wills and estate planning to reduce estate taxes.