Inheritance Disputes Under Texas Law: Questions and AnswersLee McDonald
If you or a loved one needs legal representation with a will contest or other probate or estate administration issue in Texas, you should contact an experienced estate litigation attorney for guidance and direction. DallasProbateAttorneys.com can help explain your legal rights and options and give you peace of mind in knowing that a trained professional is in your corner. Reach out to DallasProbateAttorneys.com by calling (972) 991-7700 or contacting our attorneys online.
What Are Inheritance Disputes?
Losing a loved one is often accompanied by grief for the loss and stress over the work required to address the deceased’s belongings. If you have lost someone recently, you are likely well-acquainted with these feelings. As if they were not enough, sometimes the death of a loved one results in both interpersonal disputes among inheriting family members or other individuals important to the deceased.
Negotiation, compromise, simple passage of time, and the absence of legal intervention can often resolve these disputes quickly. Other times, family dynamics become emotionally charged, such that legal intervention is required. Particularly with siblings, disputes arise over the types and extent of inheritance listed in a parent’s will. When DallasProbateAttorneys.com attorneys receive requests to litigate inheritance disputes, we listen to all the facts presented and help clients distinguish between an inheritance dispute and general unfairness. It can be tough to learn that a testator, or the will’s author, legally and properly disinherited or minimally provided for a particular beneficiary. In other cases, inheritance disputes arise that might resolve through litigation.
There are several reasons to dispute inheritance, some of which include:
• Whether a spouse can inherit when no will existed
• Complex family structures
• Unborn children
Dying Without A Will Or Will Substitute Directly Impacts Inheritance
The laws of Texas intestate succession outline what happens when a deceased person dies without a will or will alternative (trust account, life insurance policy, etc.). These laws apply to several kinds of property, including personal belongings, money, homes, and other deceased-owned land.
When The Deceased Dies Without Leaving A Living Spouse
If the deceased died without a will and did not have a living spouse at the time of death, the estate passes to the deceased’s descendants in the following order:If the deceased died without a will and did not have a living spouse at the time of death, the estate passes to the deceased’s descendants in the following order:
- To children, or the children’s descendants (who are typically the deceased’s grandchildren)
- If there are no living children or grandchildren, then to parents and siblings
- If there are no living parents and siblings, then to nieces and nephews
- If there are no nieces or nephews, then to grandparents and their descendants (typically aunts and uncles)
- If no descendants are found, the estate goes to the State of Texas
Inheritance disputes can be less likely to occur under these circumstances because each group of descendants inherits regardless of whether they like the law. The law described above is only a summary, and a more thorough understanding of the law may be required depending on the facts of your case.
When The Deceased Dies Leaving A Living Spouse
If the deceased died without a will but had a living spouse at the time of death, distributing property can become complicated quickly. There are more opportunities for inheritance disputes. The estate, other than the community estate, passes to the deceased’s descendants using the following scheme:
- The spouse receives 1/3 of the personal estate, and the deceased’s children (or grandchildren of a predeceased child) collectively take the other 2/3 of the estate
- The spouse receives 1/3 interest in the deceased’s home and land for life, and the remaining 2/3 collectively passes to the deceased’s children (or grandchildren of a predeceased child)
- If the deceased does not have descendants, then half of the personal property, home, and land goes to the spouse, and the other half passes to the deceased’s parents (or siblings if no parents)
How Does A Community Estate Impact Intestate Succession?
Texas is one of few states that is a “community property” state. Community property is all property acquired during a marriage. Separate property includes property acquired before marriage. When the deceased dies, the community property will all pass to the living spouse in two situations:
• If the deceased and living spouse shared children
• If the deceased has no other living children with anyone else.
If the deceased has children with someone other than the living spouse, those children receive half of the community property.
Community property can become a point of contention when there is a dispute over what property is included in the definition or where the deceased had children in multiple prior marriages. If you are involved in one of these kinds of disputes, you need to have an experienced attorney on your side for guidance and direction.
Adopted Children, Unborn Children, And Half/Full Blood Distinctions
The law does not treat adopted children differently, and they inherit under the law in the same way as their biological siblings.
Children In Gestation
Generally, children in gestation at the time of the deceased’s death will inherit under intestate succession laws. The issue becomes more complex if one of the following is present:
• The parents are unmarried
• The child is born 301 days after the deceased’s death
• The timing of the child’s death occurs within or after 120 hours of the deceased’s time of death
Unmarried parents have an additional burden to overcome if the father is deceased. If the child is to inherit, there must be proof that the deceased is the child’s father.
A regrettable situation arises when the unborn child dies right after the parent. Generally, the child in gestation cannot inherit if it is proven that the child died within 120 hours of the deceased. If the child dies 120 hours after the deceased, the intestate succession laws will apply to the child as though the child was already born. Thankfully these incidents are far less common in inheritance disputes. When they happen, inheritance can become complicated quickly, depending on the case’s unique facts.
If any of the above apply to you, an attorney knowledgeable about inheritance laws is crucial to safeguarding a more favorable outcome for your case. Even if it appears more obvious how inheritance laws would apply to a particular situation, complex facts can still make for hard feelings and extensive estate and probate litigation.
Half And Full-Blood Heirs
Given that today’s family structures are more likely to include second marriages with children and children of unmarried parents, understanding how half and full-blood relationships impact your specific case is essential.
Texas law does not equally apply inheritance laws to half and full-blood kindred. “Collateral kindred” are persons who are not within the deceased’s direct line of succession but are the deceased’s ancestors’ descendants. For example, your ancestors include your parents and grandparents. Your collateral kindred includes your siblings, aunts, uncles, cousins, nieces, and nephews. Should any collateral kindred inherit under an estate, the collateral kindred who are half-blood relatives will inherit half the amount of full-blood relatives. Consider half-siblings, half-uncles and aunts, and so on. However, if the inheriting collateral kindred is all half-blood, then they all inherit as they were full-blood. For example, if you have three siblings, all of whom are half-siblings, they would inherit as though they were your full-siblings.
When Wills Result In Inheritance Disputes
Ideally, an iron-clad estate plan can prevent most or all disputes. Still, inheritance disputes arise even when the deceased has a will. Two more common disputes include pretermitted children and disinherited persons.
A pretermitted child is one where the child is born or adopted either:
- During a testator’s lifetime or after the testator’s death
- After the testator executed a will
A pretermitted child is not:
- Mentioned in the deceased’s will
- Provided for in the will
- Otherwise provided for by the testator
If a pretermitted child disputes inheritance, Texas law provides that the child will take part of the community or separate estate that is not granted to a spouse. This law applies to pretermitted children regardless of whether the testator (parent) had other living children when the will was executed.
Although the above describes a general rule, it can be adjusted depending on other circumstances. In particular, the pretermitted child’s share of inheritance can be modified depending on whether the deceased died with a spouse who is not the child’s other parent.
During estate planning, testators list all individuals to whom they wish to leave property. Other times, testators include specific people to disinherit, sometimes phrased as “writing someone out of a will.” When clients come to DallasProbateAttorneys.com and state that they wish to disinherit someone, we take their requests very seriously, and we discuss the implications of what that often means for family dynamics moving forward. Typically, the persons they wish to disinherit are their children. The desire to do so can occur for many reasons, including a child’s known mismanagement of money or life choices that are unsupported by their parents. Other times, parents have provided for the child elsewhere, such as through a trust fund.
Generally, state law allows testators to disinherit individuals who would typically inherit the deceased’s property upon death, including children. When this happens, the testator will specifically name the disinherited person and provide an alternative for the property that the child would inherit. For example, suppose there are three children, one of whom is disinherited. The testator could include a provision saying that Child A and Child B will inherit all belongings, but Child C will not inherit anything. Child C, then, would have a difficult time fighting the contents of the will. Note that disinheriting a child from the will is not the same as forgetting to mention a child in the will.
Even if a will disinherits a child, hard feelings can cause the disinherited child to dispute the will and file a will contest. Will contests might include challenges to the mental capacity or the formation of the will. Even if the child cannot prove they have a rightful claim to the inheritance, the claim could significantly reduce the amount or type of property siblings inherit.
Unlike children, spouses of a deceased cannot be disinherited from a will. As discussed earlier, Texas is a community property state, and that means that the deceased person generally has half of an interest in community property while the spouse has the other half. Additionally, Texas provides living spouses the ability to live in a marital home for the remainder of their lives.
Texas Probate Attorneys Can Help You Resolve Inheritance Disputes
Inheritance laws are some of the most complex laws in probate, and disputes can quickly arise whether an estate is small or large. DallasProbateAttorneys.com’s team of knowledgeable and experienced estate litigation lawyers is here for you. Probate, estate, and trust litigation is what we regularly handle for Texas residents and their families. We have effectively represented clients in countless contested and uncontested probate matters. When you are ready, call our law firm at (972) 991-7700 or contact us online.
Inheritance Disputes: Intestacy
You can create a legal document known as a will, which allows you to determine how to distribute your assets. If you do not have a will at your death, you die intestate, in which case Texas law determines how to distribute your assets according to a formula. This article will explain how the formula works for each person.
For this formula to come into play in the probate process, you must die without a will, and your estate must be filed with the probate court. The probate court will then use this formula to determine who takes which part of the estate.
Single Without Children
If you are single and have no children, your court will distribute your assets in the following order.
- If there are two living parents, your assets will pass equally to them. If there is only one parent alive and you have no siblings, your assets will go to the surviving parent.
- If you have siblings, then your surviving parent will receive half, and your siblings (or your sibling’s children if your sibling predeceased you) will collectively receive the second half.
- If both of your parents predecease you, your estate will go directly to your siblings (or your sibling’s children if your sibling predeceased you).
- If you have no surviving parents, siblings, nieces, and nephews, then your estate will be divided equally between relatives on your mother’s side and relatives on your father’s side. If there is no surviving family on one side, your estate will go to the surviving side.
- Finally, if none of the above apply, your estate will pass to the State of Texas.
Many single people without children wish their estate to go to a close friend or a charity, but this is impossible without a will (or will alternative).
Single With Children
If you are single and have children, all your assets will pass to your children. For example, if you have four children who are still living, your estate will be divided into four, and each child will take an equal share.
If you have some children and some grandchildren, your grandchildren may also be entitled to a share. This situation occurs when one of your children predeceased you and left children of their own (your grandchildren). In this case, those grandchildren would take the share of your deceased child’s estate. For example, you had four children. One of them, who had two children, passed away before you. Those two grandchildren would receive their parent’s share.
The following situation sometimes becomes tricky if you are married and die without a will. Your property must be classified as either community property or separate property in Texas. This distinction looks at when the property was acquired related to the marriage date.
Under Texas law, if you acquire property during the marriage, it is assumed to be community property. If you are married with mutual children, your spouse will inherit your community property. Suppose you are married, but your children are from a prior marriage. In that case, your spouse will inherit one half of your community property, and your children will inherit the other half of your community property. If you are married with no children, your spouse will inherit all community property.
Separate property is property you either brought into the marriage or acquired by gift or inheritance throughout the marriage. Under the division of separate property, the law distinguishes between real and personal property. Real property includes land and the property built on the land. Personal property includes moveable items like cars, tools, or jewelry collections.
After property is classified into either real or personal property, it is divided using this formula.
- If you leave a surviving spouse and children, your spouse will receive one-third of your separate personal property. Your spouse will also receive the right to use one-third of your separate real property for their lifetime. Your children would receive the remaining interests.
- If you are married without children, your spouse will receive all your separate personal property. Your real property will be divided between your spouse and your surviving parents or siblings.
Intestacy Can Be Tricky – Consult With An Attorney
If you are or may be facing an inheritance dispute, having a knowledgeable attorney on your team can make all the difference. DallasProbateAttorneys.com has successfully resolved inheritance disputes for countless clients in Texas. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online.
Inheritance Disputes: Testator’s Intent
One of the main reasons to create a will is to ensure your last wishes are carried out and your property is divided and distributed the way you want. How can you guarantee a court will consider what you wanted if your will gets disputed after your death? Texas courts generally look to the intent of the testator (legal name for the creator of the will) for an understanding of what they would have wanted to happen.
What Does Intent Have To Do With Property?
In the probate and estate planning worlds, ‘intent’ describes what you would have wanted to happen with your property when you die. To create a valid will (a legal document), you must have a testamentary intent to distribute certain property after your death. By signing the document, you create a legal plan for all property covered by the will.
Although you are not required to include specific terms or phrases to show this intent, many courts have relied on the words “last will and testament” or “my will and desire” to show testamentary intent in Texas. This language could be especially important if a dispute arises following your death, as the courts will look at that language in assessing your intent.
How Courts Use Intent
During the will contest process, the court will try to understand what the testator would want. To begin, the probate courts must do this by reading the entire document and using only the words included in the documents. This is referred to as the ‘four-corners rule,’ meaning any interpretation of the words must be focused on the content of the paper in front of the judge. The court will only be able to use the words in the document to determine the testator’s intent and will not be able to use external factors in this first step. By using only the words in the document, the court may understand the testator’s intent and make decisions according to that intent.
Next, after the court reads the entire document and is still unsure what the testator meant by some of the words used, the court may look to the circumstances that caused the testator to create the will. The court will learn of the testator’s situation when they made the will and try to place themselves in the shoes of the testator at the time of the creation of the will. This allows the court to find and understand what the testator meant and wanted by creating the will. Under Texas law, it is assumed if an individual makes a will, they do not want to die intestate (without a will), so the court will do their best to ensure all of their covered assets are distributed under the will.
Finally, the court must ensure they are not putting words into the testator’s mouth or interpreting the language to something that the testator should have or could have said. In the will-contest process, the court cannot rewrite the will to have a different meaning than it initially did. This can be important when an individual without a legal background writes a will using legal terms. If they are not aware of the meaning of the legal terms, the court will not assume the person knew the importance of certain words and will not emphasize the use or misuse of those words.
The courts will use this process to determine what the testator meant by specific words and phrases when they created their will. By doing this, the court honors the fact that the testator made a will and would not have wanted their property to be distributed through intestacy.
Dallas Probate Attorneys For Estate Disputes
Do you think your loved one meant one thing in their will, but everyone else reads and interprets it a different way? A probate attorney can help guide you through challenging a will and determining what the will creator meant to say. DallasProbateAttorneys.com focuses heavily on probate, trusts, and estates – especially contested issues. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online.