Small Estate Affidavits (Page 5 of 7) in pdf

Small Estate Affidavits Page 5

Texas Descent and Distribution

The Legal Effect of Not Having a Will

(for decedents dying after 9/1/1993)

1. Married Person with Child[ren] or Other Descendants

A. Decedent’s separate personal property

(all that is not real property) (TPC § 38(b)(1))

1/3 to surviving

spouse

Children take

2/3 equally

B. Decedent’s separate real property

(TPC § 38(b)(1))

Surviving

spouse gets 1/3

life estate

All separate real property will be

owned outright by decedent’s

Children take all

child[ren] or other descendants

equally, subject

when surviving spouse dies.

to surviving

spouse's 1/3 life

estate

C. Decedent’s share of community

property

when all surviving children and

when there are children or other

descendants of deceased are also children or

descendants from outside of the existing marriage

descendants of surviving spouse.

on the date of decedent’s death (or if decedent

(TPC § 45(a)(2))

died before September 1, 1993)

(TPC § 45(b))

All to children,

who take equally

All to surviving

spouse

Surviving spouse

takes none, but

retains own

The charts in this handout illustrate the general rules of descent and distribution under Texas law. In addition to the

statutory references noted throughout, see § 43 of the Texas Probate Code, Determination of Per Capita and Per Stirpes

Distribution, as well as the following sections: § 40, Inheritance By and From an Adopted Child; § 41, Matters Affecting and

Not Affecting the Right to Inherit; § 42, Inheritance Rights of Children; § 44, Advancements; and § 47, Requirement of

Survival by 120 Hours.

Compliments of Judge Guy Herman, Travis County Probate Court No. 1

Small Estate Affidavits Page 5

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