What will happen if dad doesn’t do a Will?

My dad wants to do a Will but my mom is objecting. She has drug problems and only wants the money. The land they live on is in both of their names. He also has some oil royalties that are in his name only. Does she automatically get those if no Will is done?

Asked on July 14, 2014 under Estate Planning, Texas


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Assets that are jointly held as husband and wife pass automatically at the time of the death of one of the spouses.  So the house would go to Mom. Assets that are not jointly held pass via Will or if there is no Will, then via "intestacy" statute. Under texas intestacy (and assuming that all the kids here are kids of both parents) a spouse inherits all of your community property (the house), plus 1/3 of your separate personal property (the oil royalties) and the right to use your real estate for life. Children inherit everything else.

I can see the issues that are keeping you up at night and understand why Dad wants to do a Will. Suggest that Dad instead seek help from an estate planner to create a Trust.  It may by the avenue to provide for your Mom without creating a Will contest or election against the Will by a spouse.  Good luck.

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