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Law Pro
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Category: Estate Law
Satisfied Customers: 23451
Experience:  20 years experience in estate and trust planning, probate, and wills
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If someone died before September 1, 1993 in Texas, but left

Customer Question

If someone died before September 1, 1993 in Texas, but left no Will, who gets his seperate property and/or his community property?
Submitted: 5 years ago.
Category: Estate Law
Expert:  P. Simmons replied 5 years ago.
The problem you will have is that this is well past the statute of limitations. The statute of limitation to contest probate is two years. SO, if the person died prior to 93, the property would have passed and the statute to challange would have expired.

THat said, here is the law

Tex. Prob. Code § 38 (2009)

§ 38. Persons Who Take upon Intestacy

   (a) Intestate Leaving No Husband or Wife. --Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

1. To his children and their descendants.

2. If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.

3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.

4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

(b) Intestate Leaving Husband or Wife. --Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:

1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.





Customer: replied 5 years ago.
This particular situation involves title to Mineral Rights that were reserved prior to 1993 and decedent died prior to 1993. This was never brought up before as their right to the minerals was never leased until now-2008. Is the ownership of the minerals based on Texas Descent and Distribution laws of that time (prior to 1993) or is the ownership figured as if he died in 2008, when the minerals were leased?
Expert:  P. Simmons replied 5 years ago.
I'm not certain, but will send this on to a colleague who may be able to assist

hand on please
Customer: replied 5 years ago.
Thanks for the up date! Let me know what you think or find out.
Later,
Customer
Expert:  Law Pro replied 5 years ago.
As to mineral rights - that would have tohave been stated within a deed - correct?
Customer: replied 5 years ago.
The minerals were reserved in a Warranty Deed dated prior to 1993. The widow is questioning the division of minerals, saying, "if my husband died before 1993, I should get more or at least 50% of the minerals" from her husband's real property they sold, instead of a life estate for her and all interest going to the children, as is the new rules of Texas descent & distribution. I'm not sure if this was his seperate property or their community property. She wants to apply the rules of "descent and distribution" (in Texas) that were in place prior to 1993, since the minerals were reserved prior and her husband died prior to 1993. I just don't know what the "rules" were back then and if they should apply. The oil & gas lease I'm taking will be dated after 1993 (taken in 2008).
Expert:  Law Pro replied 5 years ago.

That's what I thought - the mineral rights were reserved with the deed. That brings or takes the matter out of the probate court into regular civil court.

 

What does the deed state exactly as to the reservation of the mineral rights?

Customer: replied 5 years ago.
The deed dated prior to 1993 states exactly - "Grantors reserve unto themselves, their heirs and assigns, the right to all oil, gas and other minerals in and under the lands herein conveyed." The grantors were the husband and wife in question. Husband dies before 1993 and now his widow wants to claim more than the current Texas law (after 1993) allows her. Do we revert back to the "old" descent & distribution" law or the current?
Expert:  Law Pro replied 5 years ago.

I understand you question - since they reserved the mineral rights and they were husband and wife and had owned the property by the entireties before the reservation.

 

Since he died after 1993 - the current Texas law would prevail and be applicable certainly regardless if the reservation was done prior to 1993.

Customer: replied 5 years ago.
The husband died prior to 1993--does "current" Texas law apply?
Expert:  Law Pro replied 5 years ago.
Yes, current Texas law applies.
Law Pro, Attorney
Category: Estate Law
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Experience: 20 years experience in estate and trust planning, probate, and wills
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