A will is a good tool for establishing a concrete estate plan, but not everyone has one at the time of their death. In cases where no will is available, the person is said to have died ‘intestate,’ therefore the distribution of the decedent’s assets must be handled in a different manner. Every state has their own intestate succession laws that provide guidelines for the distribution of the deceased’s property and wealth, when the deceased has not made a will.

What is Intestate Succession?

Intestate succession deals with the distribution of assets that would have been directed by a will, had one been created. These only count for assets owned by the deceased outright; there are many common assets that are exceptions to the normal intestate process, because by virtue of the creation of the asset, alternative provisions are part of the asset itself, including:

  • Property in a living trust
  • Life insurance
  • Retirement accounts, such as a 401(k) or IRA
  • Joint tenant property
  • Payable-on-death bank accounts

These assets go to the co-owner or named beneficiary, if one exists.  There are basically five necessary elements to these kinds of assets:

  1. A contract is created;
  2. The contract is with a person or legal entity (think trustee or life insurance company)
  3. The contract describes the asset being created (think face value of life insurance).
  4. The contract identifies a date the contract ends or terminates (death of the owner)
  5. The contract names one or more beneficiaries to receive the asset at end of contract.

If there is no beneficiary named or the beneficiary has predeceased the owner of the asset, then this asset passes under the deceased’s will.  If there is no will, this is also an asset that would be subject to the Intestate Success Distribution statutes.

Intestate Succession Distributions

Intestate succession distributions can be a complicated process and are generally governed by the closeness of the decedent’s family relationships.  If, for example, the deceased is married, their spouse will receive the full inheritance, unless there are children from the deceased’s prior marriage. In the event of no living spouse, the children receive the entire inheritance, divided equally. If not born legitimately, the children must prove they are heirs of the deceased, usually through an affidavit of heirship, as long as the relationship is not contested. This must be filed in the county of the estate and will usually be taken through probate court.  Lack of a surviving spouse or children can create added complications, but the intestate laws attempt to cover the situations where someone died with no surviving spouse or children. Are there parents or siblings or aunts or uncles, cousins perhaps?  In certain circumstances, these relatives can inherit.

Intestate Succession Probate

Property inherited via intestate succession usually needs to go through probate – the legal process where assets are collected, debts are paid, taxes are levied, and property is distributed. There are, however, a few exceptions to normal probate procedures. The additional component in an intestate succession is the legal process of identifying the heirs of the deceased through a determination of heirship proceeding, after which the estate would be handled by an administrator who can either be agreed upon by the heirs or named by the court.

Texas, in particular, has a simplified probate process, usually following the so-called independent administration of estates. These proceedings require little court oversight, but still require the posting of a notice to creditors and filing an inventory with the court. Probate court will administer the estate when no will exists, though anyone who believes they are qualified as executor can petition for the role. Probate court will ultimately decide on an executor. The probate court will also ultimately approve the final determination of the deceased person’s heirs and the distribution of the assets governed by the probate process.

Dallas Estate and Probate Administration Cases

Mary Ann Beaty is a Dallas-based attorney with decades of experience handling estate planning and probate matters.  Contact the law offices of Mary Ann Beaty, P.C. today for assistance with probate administration, wills and trusts, tax planning, or any other estate planning concern.