Probating A Will in Texas

In Texas, Your Spouse Does Not Automatically Inherit All of Your Property Without A Probated Will.

There is a common mistaken belief that when one spouse dies, all of his or her community property is inherited by the surviving spouse unless there is a probated will or other document that changes this result. Regrettably, this is not the case, and has not been the case since the 1840’s. It can create a legal mess for your children and your surviving spouse.

The Simple Solution

The simple solution to avoid the problems created by this mistaken belief is:

(1) to have a valid will that leaves your property to your spouse if that is your wish; and
(2) when the first spouse dies, bring the will to an attorney and discuss whether probate is necessary.

The general deadline on probating a will in Texas is four years after death. There are some exceptions, such as when a will is discovered after the four years, but it is important to start a probate case prior to the fourth anniversary of the spouse’s death to ensure you are not going to be stopped from probating the will or from opening an estate if one is necessary.

The Problem

Until 1993, a child or a descendant (e.g., a grandchild who survived a deceased child of the deceased spouse) would inherit the deceased spouse’s half interest in the community property unless a will was probated that left the deceased spouse’s half of the community property to the surviving spouse. In other words, if Husband dies, and the couple had a four year old child, the four year old child would automatically inherit the husband’s half of any community property the husband and wife accumulated while married.

The Texas Legislature’s Partial Fix

This situation was a problem for many families. In 1993, the Texas legislature partially fixed this problem for families where there were no step-children. After the law changed in 1993, if the children who survived the deceased spouse were also children of the surviving spouse, the surviving spouse would receive all of the community property. If the deceased spouse left a descendant that was not the child or descendant of his or her surviving spouse, the old rule still applies. Unfortunately, many blended families do not benefit from the legislature’s 1993 partial fix of the statute.

What is Community Property?

Texas is one of seven community property states. We define community property as property that is not separate property. Separate property is property inherited by a spouse, property a spouse receives by gift, or premarital property. Separate property can also include property that is made separate property by a premarital or postmarital agreement signed by both spouses. Community property is everything else: wages, interest and dividends, profits, rents received, etc.

What About Separate Property?

Remember that community property is property that is acquired during marriage that is not separate property. A common situation that families face is when one spouse bought a home prior to marriage. That property is separate property in Texas even if it was purchased a few months prior to the wedding, and was paid off during the marriage. Without a will leaving that home to the surviving spouse, the children, even if they are also children of the surviving spouse will inherit the home subject to the surviving spouse’s one-third life estate interest. This can cause problems if the house needs to be sold or refinanced.

The Texas legislature’s 1993 partial fix of the community property statute does not apply to separate property. An additional problem with separate property real estate is that it does not stop with children and descendants. If the couple have no descendants, but the deceased spouse left a parent or a brother or sister, the surviving spouse could end up being a co-owner of real estate with a mother-in-law, father-in-law or sibling-in-law!

Action Items To Be Prepared

Set up an appointment to talk to an estate planning or probate attorney to ensure your will and other documents leave your property to those persons you want to receive your property after your death.

If you are a widow or widower who has not probated your spouse’s will or whose spouse did not leave a will, set up an appointment to talk to a probate attorney about what your options are and whether a probate or heirship proceeding is necessary.

Reach out to our experienced attorneys today to discuss your case – 281-359-0100