Determining Heirs For Probate in Texas
As the executor, you are responsible for appropriately distributing the net estate to the rightful heirs, who are typically clearly identified in a will, making this a simple task.
There are several overlapping terms used to refer to people who receive an inheritance from an estate:
- Heirs: usually someone who is related to the decedent and would normally inherit from the estate, even without the presence of a will.
- Devisee or Legatee: someone named explicitly in the will. Historically, a devisee inherits real estate, and a legatee inherits personal property, including cash.
- Beneficiary: someone who will inherit from an estate, but also used for asset classes that bypass probate (such as life insurance) and go directly to the person named.
If an heir dies after the decedent, but before asset distribution, that heir’s estate simply inherits whatever the heir would have inherited.
If an heir dies before the decedent, the following rules apply in priority order:
- If the will names an alternate recipient, then the alternate receives the inheritance instead.
- If the recipient was not specifically named but was instead simply part of a group (i.e., "my children"), then the group's remaining members split the inheritance among themselves.
- Some wills specifically state that any bequest to a pre-deceased person should instead become part of the residuary estate and thus be distributed to the residuary heirs along with everything else.
- Otherwise, the particular state's "anti-lapse" laws may apply, generally assigning the inheritance to the dead heir's blood relatives, in a specific order of priority. If you are uncertain who should inherit in this case, you may want to speak to an estate lawyer.
- If none of the above conditions are met, then the property becomes part of the residuary estate and is distributed to the residuary heirs along with everything else.
- If there are no surviving residuary heirs and the state's anti-lapse statute did not apply (perhaps because there were no qualified blood relatives of the deceased residuary heirs), then the residuary estate is distributed according to the state's laws of intestate succession (as if there were no will).
If There Is No Will in Texas Probate
If no will exists, the estate is then considered “intestate,” and assets must be distributed according to state law in the decedent’s legal state of residence. As executor, securing the services of an attorney isn’t required, but it can provide reassurance that you’re doing things correctly.
If an estate is intestate, generally only the spouse and blood relatives will inherit assets; an unmarried partner and friends don’t get anything. If there is no surviving spouse or children, grandchildren will typically inherit. However, if no direct descendants exist, the estate “escheats” to the state, meaning the government gets to keep the property.
The disposition of real estate owned somewhere outside of the decedent’s legal state of residence must be inherited according to the laws governing that jurisdiction.
As executor, you don’t have the legal authority to make charitable donations unless explicitly authorized by the will. However, when authorized, you should treat such donations similarly to all other bequests and distributions, subject to any specific instructions in the will. Essentially, the charity becomes one of the “heirs.”
Other Complicating Factors
- In many states, if the decedent’s will leaves anything to a spouse who the decedent divorced after making the will, those bequests will automatically be invalidated.
- If an heir caused the decedent’s death, most state laws bar that heir from inheriting anything to prevent them from profiting from a crime.
- Some states bar adulterous people from inheriting, and other states bar people from inheriting anything from a child they abandoned.
As an executor, if you think extenuating circumstances exist for your estate, you should research the issue or consult an attorney before distributing estate assets.
Questions Concerning Probate and Real Estate?
Certain aspects of settling an estate, like handling an estate’s real estate holdings, may be outside your area of expertise or comfort zone. If in doubt, work with a professional.
If you have questions concerning probate and real estate in Tarrant, Parker, Wise, Collin, Denton, or Dallas County, contact David Pannell and Cities Real Estate. David has extensive experience helping families with their real estate needs before, during, and after the probate process.
David has been an agent/realtor since 2005. He has served as a United States Marines, City of Arlington police officer, and is a dedicated family man. You can trust him to put your interests first in any and all situations.
Call David today at (817) 797-9047 for help with your real estate and probate needs. You will be treated respectfully, and your requirements will be met efficiently and confidentially.
NTREIS data last updated February 6, 2023.