TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY

TEXASTEXASINTESTATE INTESTATE

DISTRIBUTION OF DISTRIBUTION OF REAL PROPERTYREAL PROPERTY

Mani & Sloan, PLLCMani & Sloan, PLLC20726 Stone Oak Parkway, Suite 11620726 Stone Oak Parkway, Suite 116

San Antonio, Texas 78258San Antonio, Texas 78258

www.mani-sloan.comwww.mani-sloan.com

TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY

Table of Contents

Table of Contents .....................................................2

INTRODUCTION Who Inherits Real Property In Texas When There Is No Will?.3

Who Inherits Real Property When There Is No Will .................4

What Is Separate Property and Community Property? ..............5

COMMUNITY PROPERTY Community Property Distribution Basics .............................6

Married with No Children..........................................................7

Married with Children of the Marriage ......................................8

Married with only Children of the Marriage ..............................9

Married with Children who are Not also Children of the Surviving Spouse .......................................................................10

SEPARATE PROPERTY Separate Property Distribution Basics...................................11

Married with Children................................................................12

Married with No Children..........................................................13

Married with One Deceased Parent ...........................................14

Married with No Parents and Siblings Only ..............................15

Married with No Living Family Members .................................16

Unmarried with Children ...........................................................17

Unmarried with no Children but with Surviving Parents...........18

Unmarried with One Surviving Parent and Siblings ..................19

Unmarried with No Surviving Parents and Surviving Siblings .20

No Surviving Spouse and No Children......................................21

MORE-ADVANCED POSSIBILITIES FOR DISTRIBUTION Per Capita, Per Stirpes and Per Capita with Representation .........................................................................22

Per Capita with Representation..................................................23

Separate Property – Unmarried with No Surviving Parents, Surviving Siblings or Descendents of Deceased Siblings..........24

Adopted Children and Half Siblings ..........................................25

Separate Property – Unmarried with no Surviving Parents and Surviving Full-Blood and Half-Blood Siblings .........................26

CONCLUSION Conclusion .................................................................................27

Texas Probate Code ...................................................................28

2

Who Inherits Real PropertyWho Inherits Real PropertyIn Texas When There Is No Will?In Texas When There Is No Will?

This is determined by the Texas laws of intestate This is determined by the Texas laws of intestate succession and the laws of descent and succession and the laws of descent and distribution applying to real property found in distribution applying to real property found in Texas Probate Code, Sections 38 and 45Texas Probate Code, Sections 38 and 45..

3

Who Inherits Real Property Who Inherits Real Property When There Is No WillWhen There Is No Will

First: Determine whether the real property is First: Determine whether the real property is the Decedentthe Decedent’’s community property or s community property or separate property. The rules of who inherits separate property. The rules of who inherits are different for each type of property.are different for each type of property.

Second: Determine (a) whether the Decedent Second: Determine (a) whether the Decedent was married and (b) whether the Decedent had was married and (b) whether the Decedent had children or descendents of children at the time children or descendents of children at the time of death.of death.

4

What Is Separate Property andWhat Is Separate Property andCommunity Property?Community Property?

Separate Property is all property acquired while single, Separate Property is all property acquired while single, or by gift, or by devise (through a Will), or by or by gift, or by devise (through a Will), or by inheritance (through intestacy), or purchased with inheritance (through intestacy), or purchased with separate property funds while married. separate property funds while married.

Community Property is all other property.Community Property is all other property.

All property acquired while married is presumed to be All property acquired while married is presumed to be Community Property, which may be expressly Community Property, which may be expressly controverted in a deed or other instrument conveying controverted in a deed or other instrument conveying the property, or by proving it was acquired as Separate the property, or by proving it was acquired as Separate Property.Property.

5

Community PropertyCommunity PropertyDistribution BasicsDistribution Basics

(Texas Probate Code § 45)(Texas Probate Code § 45)

If Decedent was married and had no children, DecedentIf Decedent was married and had no children, Decedent’’s surviving spouse inherits all s surviving spouse inherits all Community Property.Community Property.

If Decedent died On or Before September 1, 1993, married and had children, DecedentIf Decedent died On or Before September 1, 1993, married and had children, Decedent ’’s s surviving spouse retains his/her one-half of the Community Property and the Decedentsurviving spouse retains his/her one-half of the Community Property and the Decedent’’s s children inherit the Decedentchildren inherit the Decedent’’s one-half of the Community Property.s one-half of the Community Property.

If Decedent died After September 1, 1993, married and had only children of that marriage, If Decedent died After September 1, 1993, married and had only children of that marriage, DecedentDecedent’’s surviving spouse retains his/her one-half of the Community Property and inherits s surviving spouse retains his/her one-half of the Community Property and inherits the Decedentthe Decedent’’s remaining one-half of the Community Property.s remaining one-half of the Community Property.

If Decedent died After September 1, 1993, married and had children other than, or in addition If Decedent died After September 1, 1993, married and had children other than, or in addition to, the children with the surviving spouse, the surviving spouse retains his/her one-half of the to, the children with the surviving spouse, the surviving spouse retains his/her one-half of the Community Property and the DecedentCommunity Property and the Decedent’’s children inherit the Decedents children inherit the Decedent’’s one-half of the s one-half of the Community Property.Community Property.

If Decedent was survived by children but no surviving spouse, the DecedentIf Decedent was survived by children but no surviving spouse, the Decedent’’s children inherit s children inherit all of Decedentall of Decedent’’s Property (see this in Separate Property Distribution Basics). s Property (see this in Separate Property Distribution Basics).

Examples are provided on the next several slides.Examples are provided on the next several slides.

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COMMUNITY PROPERTYCOMMUNITY PROPERTY Married with No ChildrenMarried with No Children

Texas Probate Code § 45(a)(1)Texas Probate Code § 45(a)(1)

8/8

Deceased Spouse(1/2)

Surviving Spouse(1/2)


At death of Deceased Spouse, Surviving Spouse will own 8/8.At death of Deceased Spouse, Surviving Spouse will own 8/8.

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COMMUNITY PROPERTYCOMMUNITY PROPERTYMarried with Children of the MarriageMarried with Children of the Marriage

(Decedent died Before September 1, 1993)(Decedent died Before September 1, 1993)

8/8



Child(1/4)

Child(1/4)

At death of Deceased Spouse, Deceased SpouseAt death of Deceased Spouse, Deceased Spouse’’s one-half community property will be equally s one-half community property will be equally divided between the children of the marriage.divided between the children of the marriage.

8

COMMUNITY PROPERTYCOMMUNITY PROPERTY Married with only Children of the MarriageMarried with only Children of the Marriage

(Decedent died On or After September 1, 1993)(Decedent died On or After September 1, 1993)Texas Probate Code § 45(a)(2)Texas Probate Code § 45(a)(2)

8/8




At death of Deceased Spouse, Surviving Spouse will own 8/8 so long as the spouses had At death of Deceased Spouse, Surviving Spouse will own 8/8 so long as the spouses had only children of the marriage. If they have children, other than children of the marriage, only children of the marriage. If they have children, other than children of the marriage,

the Deceased Spousethe Deceased Spouse’’s children inherit all of Decedents children inherit all of Decedent’’s property.s property.

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COMMUNITY PROPERTYCOMMUNITY PROPERTYMarried with Children who are Not also ChildrenMarried with Children who are Not also Children

of the Surviving Spouse of the Surviving Spouse Texas Probate Code § 45(b)Texas Probate Code § 45(b)

DeceasedSpouse

FirstSpouse

SecondSpouse

(SurvivingSpouse)

Child Child Child

Family StructureFamily Structure Intestate DistributionIntestate Distribution

8/8

Child ofDeceased Spouse

(1/6)

Child of Deceased Spouse

(1/6)

Child ofDeceased Spouse

(1/6)

DeceasedSpouse

SurvivingSpouse

(1/2)

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Separate PropertySeparate PropertyDistribution BasicsDistribution Basics

Texas Probate Code Texas Probate Code § 38§ 38 If Decedent had children but no surviving spouse, the DecedentIf Decedent had children but no surviving spouse, the Decedent ’’s children inherit all of Decedents children inherit all of Decedent’’s Separate s Separate

Property.Property. If Decedent was survived by a spouse and by children, DecedentIf Decedent was survived by a spouse and by children, Decedent ’’s surviving spouse inherits a life estate in 1/3 s surviving spouse inherits a life estate in 1/3

of the Separate Property, and the children inherit all of the Separate Property, subject to the surviving spouseof the Separate Property, and the children inherit all of the Separate Property, subject to the surviving spouse ’’s s life estate.life estate.

If Decedent was survived by a spouse but had no children, DecedentIf Decedent was survived by a spouse but had no children, Decedent ’’s surviving spouse inherits one-half of the s surviving spouse inherits one-half of the Separate Property and DecedentSeparate Property and Decedent’’s father inherits one-fourth of the Separate Property and Decedents father inherits one-fourth of the Separate Property and Decedent ’’s mother s mother inherits the remaining one-fourth of the Separate Property.inherits the remaining one-fourth of the Separate Property.

If only one parent survives, that parent inherits one-fourth of the Separate Property and the other one-fourth is If only one parent survives, that parent inherits one-fourth of the Separate Property and the other one-fourth is inherited by Decedentinherited by Decedent ’’s brothers and sisters and/or their decedents, per stirpes (i.e. by their deceased parentss brothers and sisters and/or their decedents, per stirpes (i.e. by their deceased parents ’’ share; referred to hereafter as share; referred to hereafter as ““brothers and sistersbrothers and sisters”” for simplicity). for simplicity).

If no brothers and sisters survive Decedent, then the surviving parent inherits one-half of the Decedents If no brothers and sisters survive Decedent, then the surviving parent inherits one-half of the Decedents Separate Property. Separate Property.

If there is no surviving parent, the brothers and sisters inherit one-half of the DecedentIf there is no surviving parent, the brothers and sisters inherit one-half of the Decedent ’’s Separate Property.s Separate Property.

““ChildrenChildren”” or or ““ChildChild”” includes descendents of a predeceased child, per stirpes. includes descendents of a predeceased child, per stirpes.

Examples are provided on the next several slides.Examples are provided on the next several slides.

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SEPARATE PROPERTYSEPARATE PROPERTYMarried with ChildrenMarried with Children

Texas Probate Code § 38(b)(1)Texas Probate Code § 38(b)(1)

8/8

Deceased Spouse

Child(1/2 of 2/3 Fee Simple)

Child(1/2 of 2/3 Fee Simple)

Surviving Spouse (Life Estate);Children (Remainder)

(1/3)

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SEPARATE PROPERTYSEPARATE PROPERTYMarried with No ChildrenMarried with No Children




Surviving Father(1/4)

Surviving Mother(1/4)

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SEPARATE PROPERTYSEPARATE PROPERTYMarried with One Deceased ParentMarried with One Deceased Parent




Surviving Sibling(1/8)


Surviving Parent(1/4)

““Surviving SiblingSurviving Sibling”” also means descendents of predeceased siblings. also means descendents of predeceased siblings.14

SEPARATE PROPERTYSEPARATE PROPERTYMarried with No Parents and Siblings OnlyMarried with No Parents and Siblings Only







15

SEPARATE PROPERTYSEPARATE PROPERTYMarried with No Living Family MembersMarried with No Living Family Members



No Surviving Parents, Siblings,or Descendents of Siblings

Surviving Spouse(All)

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SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with ChildrenUnmarried with Children


Deceased(8/8)

Child(1/3)

Child(1/3)

Child(1/3)

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SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with no Children but with Unmarried with no Children but with

Surviving ParentsSurviving ParentsTexas Probate Code § 38(a)(2)Texas Probate Code § 38(a)(2)

Deceased(8/8)

Surviving Mother(1/2)

Surviving Father(1/2)

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SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with One Surviving Parent and SiblingsUnmarried with One Surviving Parent and Siblings


Deceased(8/8)

Surviving Parent(1/2)

Surviving Sibling *(1/4)


* Or descendents of siblings, per stirpes.* Or descendents of siblings, per stirpes.19

SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with No Surviving Parents Unmarried with No Surviving Parents

and Surviving Siblingsand Surviving SiblingsTexas Probate Code § 38(a)(3)Texas Probate Code § 38(a)(3)

Deceased(8/8)





SEPARATE PROPERTYSEPARATE PROPERTYNo Surviving Spouse and No ChildrenNo Surviving Spouse and No Children


The Distribution of the Separate Property of an The Distribution of the Separate Property of an individual dying with no surviving spouse and individual dying with no surviving spouse and no children or descendents of children, becomes no children or descendents of children, becomes very fact specific. It is not possible to provide very fact specific. It is not possible to provide the flowcharts depicting the mesne possibilities the flowcharts depicting the mesne possibilities and outcomes which result from Texas Probate and outcomes which result from Texas Probate Code § 38 (a)(4). As a result, you should consult Code § 38 (a)(4). As a result, you should consult an attorney or your Probate Code. However, an attorney or your Probate Code. However, some basic distribution scenarios are included some basic distribution scenarios are included below.below.

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Per Capita, Per Stirpes andPer Capita, Per Stirpes andPer Capita with RepresentationPer Capita with Representation

Texas Probate Code Texas Probate Code § § 4343

Per Capita translates to mean Per Capita translates to mean ““by headby head””

Per Stirpes means Per Stirpes means ““through rootsthrough roots””

When the DeceasedWhen the Deceased’’s surviving heirs are all of the first order and equal s surviving heirs are all of the first order and equal standing (i.e. children), they inherit per capita – in equal shares per the standing (i.e. children), they inherit per capita – in equal shares per the number of children.number of children.

When the DeceasedWhen the Deceased’’s surviving heirs are of more than just the first order s surviving heirs are of more than just the first order and have different standing (i.e. children vs. grandchildren of a child who and have different standing (i.e. children vs. grandchildren of a child who predeceased the Deceased), the descendants inherit only such portion of predeceased the Deceased), the descendants inherit only such portion of the real property as their parent, through whom they inherit, would be the real property as their parent, through whom they inherit, would be entitled to if their parent were alive (called entitled to if their parent were alive (called ““per capita with representatioper capita with representationn””).).

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Per Capita with RepresentationPer Capita with Representation

Deceased

Predeceased Sibling Predeceased Sibling Surviving Sibling(1/3)

Predeceased Child ofSibling Predeceased

Surviving ChildOf Predeceased Sibling

(1/6)

Surviving ChildOf Predeceased Sibling

(1/6)

Grandchild ofPredeceased Sibling

(1/3)

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SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with No Surviving Parents, Surviving Unmarried with No Surviving Parents, Surviving

Siblings or Descendents of Deceased SiblingsSiblings or Descendents of Deceased SiblingsTexas Probate Code § 38(a)(3)Texas Probate Code § 38(a)(3)

Deceased(8/8)

Predeceased Sibling Surviving Sibling (1/3)

Surviving Sibling (1/3)

Predeceased Sibling’s Child

(1/2 of 1/3)

Predeceased Sibling’s Child

(1/2 of 1/3)

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Adopted children inherit the same proportion from their adoptive parent as a natural born child. Adopted children inherit the same proportion from their adoptive parent as a natural born child. However, where an adopted child is the Decedent, the intestate distribution scheme can require the However, where an adopted child is the Decedent, the intestate distribution scheme can require the assistance of an attorney to determine.assistance of an attorney to determine.

Half Blood. Where the surviving siblings of decedent (or their descendants) are full-blood to Half Blood. Where the surviving siblings of decedent (or their descendants) are full-blood to decedent, they inherit a full decedent, they inherit a full ““shareshare””, but where there are both full-blood siblings and half-blood , but where there are both full-blood siblings and half-blood siblings, the half-blood siblings (or their descendants) inherit half as much as the full-blood siblings.siblings, the half-blood siblings (or their descendants) inherit half as much as the full-blood siblings.

To calculate a full-blood siblingTo calculate a full-blood sibling ’’s share versus a half-blood siblings share versus a half-blood sibling ’’s share, you multiply s share, you multiply the the number of full-blood siblings by 2 (Example: 3 full-blood siblings x 2 = 6).number of full-blood siblings by 2 (Example: 3 full-blood siblings x 2 = 6).

Then add that number to the number of half-blood siblings (Example: 1 half-blood sibling + 6 = 7).Then add that number to the number of half-blood siblings (Example: 1 half-blood sibling + 6 = 7).

The total is the denominator to use for your ownership (Example: each full-blood sibling is entitled The total is the denominator to use for your ownership (Example: each full-blood sibling is entitled to 2/7, and the half-blood sibling is entitled to 1/7 of the Deceasedto 2/7, and the half-blood sibling is entitled to 1/7 of the Deceased ’’s real property).s real property).

Adopted Children & Half SiblingsAdopted Children & Half Siblings

An example is provided on the next slide.An example is provided on the next slide.

25

SEPARATE PROPERTYSEPARATE PROPERTYUnmarried with No Surviving Parents Unmarried with No Surviving Parents

and Surviving Full-Blood and Half-Blood Siblingsand Surviving Full-Blood and Half-Blood SiblingsTexas Probate Code § 38(a)(2)&(3)Texas Probate Code § 38(a)(2)&(3)

Deceased(8/8)

SurvivingFull-Blood Sibling *

(2/7)


(2/7)


(2/7)

Surviving Half- Blood Sibling *

(1/7)


These slides are a visual depiction of certain theoretical distribution These slides are a visual depiction of certain theoretical distribution scenarios under the Texas Probate Code Sections 38 and 45; they scenarios under the Texas Probate Code Sections 38 and 45; they

are not legal advice and should not be relied upon as a substitute for are not legal advice and should not be relied upon as a substitute for legal advice. Always consult an Attorney licensed to practice law in legal advice. Always consult an Attorney licensed to practice law in

the State of Texas if you wish to determine who inherits real the State of Texas if you wish to determine who inherits real property in Texas when there is no Will.property in Texas when there is no Will.

Mani & Sloan, PLLCMani & Sloan, PLLC20726 Stone Oak Parkway, Suite 11620726 Stone Oak Parkway, Suite 116

San Antonio, Texas 78258San Antonio, Texas 78258

www.mani-sloan.comwww.mani-sloan.com

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Texas Probate CodeTexas Probate Code§ 38. Persons Who Take Upon Intestacy

(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

1. To his children and their descendents. 2. If there be no children nor their descendants, then to his father

and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.

3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.

4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather and grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

(b) Intestate Leaving Husband or Wife. Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:

1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or

children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.

§ 45. Community Estate

(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:

(1) no child or other descendant of the deceased spouse survives the deceased spouse; or

(2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse. (b) On the intestate death of one of the spouses to a marriage, if a

child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.

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TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY

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