There are several paths that could be taken in a Texas probate.
If your spouse left a valid will that is properly drafted, then you can take the easy path, the one that is straight, narrow, and short. After minimal court filings and a 5- minute court hearing, you are done. No bond, no court supervision, no controversy required.
If your spouse left a valid will that was poorly drafted, then your path gets curvy and much longer. You must have an evidentiary hearing, probably contested, to clear up the issues. You may not like the outcome.
If your spouse left no will, an invalid will, or an incomplete will that did not dispose of all assets, your path just took a hair-raising turn that will end only when you fall off the cliff. On the way, you must pass through the gates of hell, also known as an “heirship proceeding.”
What is an Heirship Proceeding?
Nobody likes the results in an heirship proceeding. Let’s explain by giving you a hypothetical blended family: you, your spouse, and his children from his first marriage. We will also give you a simplified version of assets: together you owned several bank accounts, furniture, stocks, personal belongings, a vacation home in Texas, and two cars. Those had been created or purchased during your marriage. The accounts did not have a beneficiary designation, and they were not marked “right of survivorship.”
Your spouse also owned, from before his marriage to you, the home you have been living in and a collection of valuable artworks.
Who gets what because of his death? Here’s the simple answer:
- You get half of the bank accounts, furniture, stocks, personal belongings and two cars. Your stepchildren get the other half.
- You get 1/3 of his expensive artwork. Your stepchildren get 2/3.
- You get half of the vacation house. Your stepchildren get the other half.
- You get a 1/3 life estate in the homestead. Your stepchildren get the other 2/3 life estate, plus they own the homestead.
So, as a grieving widow, you get to spend the next year arguing with your stepchildren about dividing sofas, silverware and artwork, selling or co-owning the vacation house, and payment of homestead expenses.
Now let’s move to a different scenario. Suppose your spouse did not have any kids. The path is clear for you to inherit everything, right?
Don’t be silly. The law is never that tidy.
You get 100% of the bank accounts, furniture, stock, personal belongings, cars, expensive artwork, and vacation house.
But you only get one-half of your homestead. The other half is divided between your mother-in-law and father-in-law. It was your husband’s separate real property, you see.
This twisted result is because inheritance law is based on classifications. An asset is real property or personal property. It is community property or separate property. If your spouse had children, then either you are the other parent, or you are not. Each classification carries a different result.
Most heirships are not as simple as our examples. Family members cannot be found or are so numerous because of deaths and multiple marriages that you must spend years locating them. A surprise heir surfaces: a child given up for adoption, a common-law spouse, a half-sibling, a child adopted by estoppel. There are disagreements over property valuation and characterization.
You don’t have to go down the path of Heirship Hell. There is an easier route: you and your spouse can hire an estate planning attorney to prepare properly drafted wills.
Hammerle Finley Can Help With Your Probate Needs
Are you looking for legal assistance? Hammerle Finley has experience in probate, estate planning, guardianship and much more. Schedule a consultation with one of our experienced attorneys to discuss your options.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship and contested litigation. She may be reached at legaltalktexas@hammerle.com. This column contains general information only and does not constitute legal advice.
