If my mother died without a will, does my father inherit her assets? Is it ok if my father wants to give everything in his will to only one child?

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If my mother died without a will, does my father inherit her assets? Is it ok if my father wants to give everything in his will to only one child?

My mother recently passed away and she left no will. My father is still alive. Does this affect his estate in any way? He says that everything is his now. I am okay with that, but I just wanted to confirm his opinion. I am on his side but he has other children who may not feel that way. I have talked to him and now he wants to make a will and leave everything to one son because he does not work. Again I have no problem with his decision, but can he do that?

Asked on March 12, 2009 under Estate Planning, Texas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Our condolences on your loss.

I am NOT a Texas lawyer, but in most states, without a Will, a surviving spouse typically inherits only PART of the separate property assets his or her deceased spouse had held in his or her own name, and the children inherit the rest.  In many states it works like this -- the first $50k goes to the spouse, and then 1/2 or 1/3rd of the rest goes to the spouse, the rest to the children or heirs of pre-deceased children.

In most states if property (such as a house) was held in joint tenancy, that property goes to the surviving joint tenant(s) by operation of law immediately on death.

As Texas is a community property state, it is likely much of any property acquired after the marriage, othe than by inheritance, will be regarded as community property and (although I don't know Texas law) in many community property states the community property goes to the surviving spouse absent a Will.

As to his property, assuming he is and remains of sound mind and has capacity to make a Will, he would be free to spend it all, give it all away or leave it all to a charity or a favored (or needy) child during his lifetime, or if he does it by a valid Will, at death.

He normally need not share and share alike. But if he has no Will and no spouse, then the laws provide his property  is generally shared among his heirs at law (here his children) equally.


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