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TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY

TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY. Mani & Sloan, PLLC 20726 Stone Oak Parkway, Suite 116 San Antonio, Texas 78258 www.mani-sloan.com. 2. Who Inherits Real Property In Texas When There Is No Will?.

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TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY

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  1. TEXASINTESTATE DISTRIBUTION OF REAL PROPERTY Mani & Sloan, PLLC 20726 Stone Oak Parkway, Suite 116 San Antonio, Texas 78258 www.mani-sloan.com

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  3. Who Inherits Real PropertyIn Texas When There Is No Will? This is determined by the Texas laws of intestate succession and the laws of descent and distribution applying to real property found in Texas Probate Code, Sections 38 and 45. 3

  4. Who Inherits Real Property When There Is No Will • First: Determine whether the real property is the Decedent’s community property or separate property. The rules of who inherits are different for each type of property. • Second: Determine (a) whether the Decedent was married and (b) whether the Decedent had children or descendents of children at the time of death. 4

  5. What Is Separate Property andCommunity Property? • Separate Property is all property acquired while single, or by gift, or by devise (through a Will), or by inheritance (through intestacy), or purchased with separate property funds while married. • Community Property is all other property. • All property acquired while married is presumed to be Community Property, which may be expressly controverted in a deed or other instrument conveying the property, or by proving it was acquired as Separate Property. 5

  6. Community PropertyDistribution Basics(Texas Probate Code § 45) • If Decedent was married and had no children, Decedent’s surviving spouse inherits all Community Property. • If Decedent died On or Before September 1, 1993, married and had children, Decedent’s surviving spouse retains his/her one-half of the Community Property and the Decedent’s children inherit the Decedent’s one-half of the Community Property. • If Decedent died After September 1, 1993, married and had only children of that marriage, Decedent’s surviving spouse retains his/her one-half of the Community Property and inherits the Decedent’s remaining one-half of the Community Property. • If Decedent died After September 1, 1993, married and had children other than, or in addition to, the children with the surviving spouse, the surviving spouse retains his/her one-half of the Community Property and the Decedent’s children inherit the Decedent’s one-half of the Community Property. • If Decedent was survived by children but no surviving spouse, the Decedent’s children inherit all of Decedent’s Property (see this in Separate Property Distribution Basics). Examples are provided on the next several slides. 6

  7. 8/8 Deceased Spouse (1/2) Surviving Spouse (1/2) Surviving Spouse (1/2) COMMUNITY PROPERTYMarried with No ChildrenTexas Probate Code § 45(a)(1) At death of Deceased Spouse, Surviving Spouse will own 8/8. 7

  8. 8/8 Deceased Spouse (1/2) Surviving Spouse (1/2) Child (1/4) Child (1/4) COMMUNITY PROPERTYMarried with Children of the Marriage(Decedent died Before September 1, 1993) At death of Deceased Spouse, Deceased Spouse’s one-half community property will be equally divided between the children of the marriage. 8

  9. 8/8 Deceased Spouse (1/2) Surviving Spouse (1/2) Surviving Spouse (1/2) COMMUNITY PROPERTYMarried with only Children of the Marriage(Decedent died On or After September 1, 1993)Texas Probate Code § 45(a)(2) At death of Deceased Spouse, Surviving Spouse will own 8/8 so long as the spouses had only children of the marriage. If they have children, other than children of the marriage, the Deceased Spouse’s children inherit all of Decedent’s property. 9

  10. Deceased Spouse 8/8 First Spouse Second Spouse (Surviving Spouse) Deceased Spouse Surviving Spouse (1/2) Child Child Child Child of Deceased Spouse (1/6) Child of Deceased Spouse (1/6) Child of Deceased Spouse (1/6) COMMUNITY PROPERTYMarried with Children who are Not also Childrenof the Surviving Spouse Texas Probate Code § 45(b) Family Structure Intestate Distribution 10

  11. Separate PropertyDistribution BasicsTexas Probate Code § 38 • If Decedent had children but no surviving spouse, the Decedent’s children inherit all of Decedent’s Separate Property. • If Decedent was survived by a spouse and by children, Decedent’s surviving spouse inherits a life estate in 1/3 of the Separate Property, and the children inherit all of the Separate Property, subject to the surviving spouse’s life estate. • If Decedent was survived by a spouse but had no children, Decedent’s surviving spouse inherits one-half of the Separate Property and Decedent’s father inherits one-fourth of the Separate Property and Decedent’s mother inherits the remaining one-fourth of the Separate Property. • If only one parent survives, that parent inherits one-fourth of the Separate Property and the other one-fourth is inherited by Decedent’s brothers and sisters and/or their decedents, per stirpes (i.e. by their deceased parents’ share; referred to hereafter as “brothers and sisters” for simplicity). • If no brothers and sisters survive Decedent, then the surviving parent inherits one-half of the Decedents Separate Property. • If there is no surviving parent, the brothers and sisters inherit one-half of the Decedent’s Separate Property. • “Children” or “Child” includes descendents of a predeceased child, per stirpes. Examples are provided on the next several slides. 11

  12. 8/8 Deceased Spouse Surviving Spouse (Life Estate); Children (Remainder) (1/3) Child (1/2 of 2/3 Fee Simple) Child (1/2 of 2/3 Fee Simple) SEPARATE PROPERTYMarried with ChildrenTexas Probate Code § 38(b)(1) 12

  13. Deceased Spouse (8/8) SurvivingSpouse (1/2) SurvivingFather (1/4) SurvivingMother (1/4) SEPARATE PROPERTYMarried with No ChildrenTexas Probate Code § 38(b)(2) 13

  14. Deceased Spouse (8/8) SurvivingSpouse (1/2) SurvivingParent (1/4) SurvivingSibling (1/8) SurvivingSibling (1/8) SEPARATE PROPERTYMarried with One Deceased ParentTexas Probate Code § 38(b)(2) “Surviving Sibling” also means descendents of predeceased siblings. 14

  15. Deceased Spouse (8/8) SurvivingSpouse (1/2) SurvivingSibling (1/6) SurvivingSibling (1/6) SurvivingSibling (1/6) SEPARATE PROPERTYMarried with No Parents and Siblings OnlyTexas Probate Code § 38(b)(2) 15

  16. Deceased Spouse (8/8) No Surviving Parents, Siblings, or Descendents of Siblings SurvivingSpouse (All) SEPARATE PROPERTYMarried with No Living Family MembersTexas Probate Code § 38(b)(2) 16

  17. Deceased (8/8) Child (1/3) Child (1/3) Child (1/3) SEPARATE PROPERTYUnmarried with ChildrenTexas Probate Code § 38(a)(1) 17

  18. Deceased (8/8) Surviving Mother (1/2) Surviving Father (1/2) SEPARATE PROPERTYUnmarried with no Children but with Surviving ParentsTexas Probate Code § 38(a)(2) 18

  19. Deceased (8/8) Surviving Parent (1/2) Surviving Sibling * (1/4) Surviving Sibling * (1/4) SEPARATE PROPERTYUnmarried with One Surviving Parent and SiblingsTexas Probate Code § 38(a)(2) * Or descendents of siblings, per stirpes. 19

  20. Deceased (8/8) Surviving Sibling * (1/3) Surviving Sibling * (1/3) Surviving Sibling * (1/3) SEPARATE PROPERTYUnmarried with No Surviving Parents and Surviving SiblingsTexas Probate Code § 38(a)(3) * Or descendents of siblings, per stirpes. 20

  21. SEPARATE PROPERTYNo Surviving Spouse and No ChildrenTexas Probate Code § 38(a)(4) The Distribution of the Separate Property of an individual dying with no surviving spouse and no children or descendents of children, becomes very fact specific. It is not possible to provide the flowcharts depicting the mesne possibilities and outcomes which result from Texas Probate Code § 38 (a)(4). As a result, you should consult an attorney or your Probate Code. However, some basic distribution scenarios are included below. 21

  22. Per Capita, Per Stirpes andPer Capita with RepresentationTexas Probate Code § 43 • Per Capita translates to mean “by head” • Per Stirpes means “through roots” • When the Deceased’s surviving heirs are all of the first order and equal standing (i.e. children), they inherit per capita – in equal shares per the number of children. • When the Deceased’s surviving heirs are of more than just the first order and have different standing (i.e. children vs. grandchildren of a child who predeceased the Deceased), the descendants inherit only such portion of the real property as their parent, through whom they inherit, would be entitled to if their parent were alive (called “per capita with representation”). 22

  23. Deceased PredeceasedSibling PredeceasedSibling Surviving Sibling (1/3) Predeceased Child of Sibling Predeceased Surviving Child Of Predeceased Sibling (1/6) Surviving Child Of Predeceased Sibling (1/6) Grandchild of Predeceased Sibling (1/3) Per Capita with Representation 23

  24. Deceased (8/8) Predeceased Sibling Surviving Sibling (1/3) Surviving Sibling (1/3) Predeceased Sibling’s Child (1/2 of 1/3) Predeceased Sibling’s Child (1/2 of 1/3) SEPARATE PROPERTYUnmarried with No Surviving Parents, Surviving Siblings or Descendents of Deceased SiblingsTexas Probate Code § 38(a)(3) 24

  25. Adopted Children & Half Siblings • Adopted children inherit the same proportion from their adoptive parent as a natural born child. However, where an adopted child is the Decedent, the intestate distribution scheme can require the assistance of an attorney to determine. • Half Blood. Where the surviving siblings of decedent (or their descendants) are full-blood to decedent, they inherit a full “share”, but where there are both full-blood siblings and half-blood siblings, the half-blood siblings (or their descendants) inherit half as much as the full-blood siblings. To calculate a full-blood sibling’s share versus a half-blood sibling’s share, you multiply the number of full-blood siblings by 2 (Example: 3 full-blood siblings x 2 = 6). Then add that number to the number of half-blood siblings (Example: 1 half-blood sibling + 6 = 7). The total is the denominator to use for your ownership (Example: each full-blood sibling is entitled to 2/7, and the half-blood sibling is entitled to 1/7 of the Deceased’s real property). An example is provided on the next slide. 25

  26. Deceased (8/8) Surviving Full-Blood Sibling * (2/7) Surviving Full-Blood Sibling * (2/7) Surviving Full-Blood Sibling * (2/7) Surviving Half- Blood Sibling * (1/7) SEPARATE PROPERTYUnmarried with No Surviving Parents and Surviving Full-Blood and Half-Blood SiblingsTexas Probate Code § 38(a)(2)&(3) * Or descendents of siblings, per stirpes. 26

  27. These slides are a visual depiction of certain theoretical distribution scenarios under the Texas Probate Code Sections 38 and 45; they are not legal advice and should not be relied upon as a substitute for legal advice. Always consult an Attorney licensed to practice law in the State of Texas if you wish to determine who inherits real property in Texas when there is no Will. Mani & Sloan, PLLC 20726 Stone Oak Parkway, Suite 116 San Antonio, Texas 78258 www.mani-sloan.com 27

  28. Texas Probate Code 28

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