If someone who was married with children died without a Will, who would their property go to?

UPDATED: Oct 1, 2022

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If someone who was married with children died without a Will, who would their property go to?

My grandmother owned her property when she died, and we would like to know if it would go to her spouse because she was married when she passed or if it would go equally to her 4 children? If it were to go to her spouse, would there have been paperwork that needed to be filled out to make this solid? If so, there was no paperwork filed so where would we have to go now?

Asked on June 12, 2018 under Estate Planning, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

This answer assumes that the children in question are not children of the surviving spouse--the answer is different if some or all of them are children of the spouse.
When a person passes away without a will, her estate (the property and assets she leaves behind) are distributed according to the rules for "intestate succession"--who inherits what in the absence of a will. In your state (TX), when there the decedent (person passing away) is survived by a spouse and children, and those children are not also the children of the surviving spouse:
* The spouse keeps his 1/2 interest in the "community property" (to oversimply, everything earned or acquired during marriage), gets 1/3 the decedent's "separate property" (anything she owned pre-marriage, or inherited), and gets a "life estate" in the decedent's real estate (their home; the right to live in that home for the rest of his life or until he voluntarily moves out).
* The children share equally in her 1/2 of the community (marital) property and inherit 2/3 of her separate property.
As you can see, figuring out who gets what can be complex, and navigating the paperwork in probate court (especially if you have to file a legal challenge, because her spouse is keeping things he should not) can be complext; you are strongly advised to retain a probate attorney to help you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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