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What happens if my parents pass away without a will?

On Behalf of | Aug 30, 2016 | Probate & Estate Administration |

In a time of grieving the loss of your parents, it may feel scary thinking about the unknowns surrounding a possible will, and whether your parents’ prized possessions will be passed on how they would have wanted. It’s not just about material things, but about the legacy your parents left behind.

If you find out your parent or parents have passed away without a will, by law it means they have died “intestate.” The intestacy laws of Texas determine how their property will be distributed, unless they had real estate in another state — in that case, the laws of that specific state determine how their property is handled.

What property will be distributed after my parents’ death?

• Real estate

• Bank accounts

• Securities

• Other assets under their name at the time of death

Who will receive the property?

Without a will, there are certain guidelines for where property goes depending on if your parents were single, married, unmarried or in a domestic partnership.

Single with children, but no parents or siblings: Generally, if your parent was single at the time of death, the entire estate will go to his or her children, in equal shares divided amongst the children. If your parent had a child who died before them, and that child had children, then that child’s share will go to your parent’s grandchildren.

Married with children: Your parent’s entire estate will go to the surviving spouse, if all the children are also the children of the surviving spouse. The spouse inherits all the community property, a third of the separate personal property and the right to use the real estate for life. Children receive everything else Your parents assets will be distributed differently if they also had children with a previous spouse or partner.

Unmarried with children: Intestacy laws only recognize relatives, so unmarried couples do not inherit the property of their partner after they pass away without a will. Without a will, the property will be divided amongst relatives. The division depends on the relation to the person who passed away.

Domestic partners: Since the state of Texas does not recognize domestic partnerships, but Travis County does, only those who die without a will and were residents of Travis County have the benefit of their surviving domestic partner inheriting the same as a surviving spouse.

What type of property is not impacted by whether or not my parents left a will?

There are some possessions that would not be included in a will anyway, and instead are to be distributed to the beneficiaries your parents listed on their accounts, or the co-owner of the accounts. These things include:

• Life insurance proceeds

• Property your parent or parents transferred to a living trust

• Money in a retirement account like a 401(k) or IRA

• Bank accounts that are payable-on-death

• Property your parents owned jointly with someone else

These are examples of some of the things you might encounter when figuring out how to protect your parents’ legacy after their death when they haven’t left a will. Of course, each situation differs, so it’s a wise move to consult with a probate attorney who can answer more detailed questions about how property is distributed without a will, and can make sure nothing is forgotten in this overwhelming process. Having someone by your side who knows how things work can prove to be an important asset during a time of grief.