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Do You Know Who Your Heirs Are?

Christopher C. Burt

by Christopher C. Burt

November 10, 2022

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Do you know what will happen to your stuff when you are gone?  If you don’t have a will, Texas will decide for you.

Under Texas law, there is a clear guide for determining one’s heirs shortly after they pass. In fact, every time that a person dies without a will, the court must hold a hearing to determine who are your heirs. Once heirs are established, then Texas law assigns what each heir is entitled to. As beloved as the lone star state is amongst Texans, failing to leave a Last Will and Testament leaves a lot to be determined by the state. For many, heirship determinations and distributions under Texas law will not align with your wishes because societal norms surrounding family have changed from the status quo of generations past.

Generally, Chapter 201 of the Texas Estates Code provides that your heirs may include the following persons:

(1) surviving spouse;
(2) children;
(3) grandchildren;
(4) parents;
(5) surviving siblings;
(6) aunts and uncles etc.

Do you notice any persons missing from Texas’ list that you care for and would like to provide for? How about your fiancée, life partner, stepchild, godchild, neighbor, best friend, or maybe even your fur baby?

Under Texas law, none of these people will be recognized as an heir of your estate unless listed specifically in a will. However, as Texans continue to progress, Texas law too will progress, but we are likely far away from statutorily providing for today’s diverse family structures and relationships.

That said, it is good to have a statutory backstop in the event of an untimely death because many people benefit from Texas intestacy laws and other laws that related to probate. Specifically, a person can establish an informal marriage or adoption and become an heir even after their loved one is gone.

Without a will, will my partner be taken care of?

Of course, it would’ve been great if they put a ring on it— like Beyoncé —but they didn’t so, now what?

Texas does recognize informal marriages also known as common law marriage. Fortunately, Texas law provides elements that must exist for a court to determine that a couple were informally married.

Texas’ three-pronged test to determine whether a couple married informally includes:

(1) an agreement to be permanently married,
(2) after the agreement, the couple lived together in this state as husband and wife, and
(3) the couple represented to others in the community that they were married.

Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). Believe it or not, that is all that it takes to establish an informal marriage in Texas! That said, proving the elements is very fact intensive and it can be costly, especially if the existence of the marriage is contested. We recommend that you seek legal advice to assess the facts pertaining to your specific relationship before making any claims as the surviving spouse after your loved one has passed.

 In short, if you want to take control of who inherits your estate and minimize legal expenses for your loved ones, it is imperative that you start planning your estate. Better yet, take a moment to write down your final wishes now, then sign and date.

Seriously, write something down!

In Texas, that quick note likely constitutes a holographic will, and under Texas law, a holographic will that disposes of your estate is sufficient to prevent your non-traditional heirs from being left out. In short, don’t let Texas law determine that your awful Aunt Aileen inherits everything, create a will or your loved ones will have to contact probate litigators like us to sort things out!

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