An estate plan should state who can act if you cannot and who should receive your assets. For a Houston family, the first step is to check what you own. Texas marriage laws affect that review. But not every asset held during a marriage belongs to both spouses.
What does community property mean?
In Texas, community property is what either spouse gets during marriage that is not separate property. The law presumes property held during marriage, or at its end, is community property. To prove it is separate, a spouse needs clear and convincing evidence. See Texas law, §§3.002–3.003.
Separate property can include:
- Assets a spouse owned before the marriage.
- A gift made to one spouse while married.
- Assets one spouse inherits while married.
- Certain personal-injury awards. This rule does not include an award for lost earning capacity during the marriage.
These rules appear in §3.001. A deed or account in just one name does not settle every ownership issue. Mixed funds, later payments and title changes may need a closer look.
Which records should you keep?
Gather deeds, purchase dates and loan records. Keep gift letters and records of assets you inherit. Bank statements can help trace where funds came from. Tell your lawyer about past marriages and any marital property agreement.
For example, a cash gift to one spouse may start as separate property. If those funds later move through joint accounts, records can help trace them. The name on the account alone may not prove who owns the funds.
For each asset, write down:
- Whose name is on it.
- When and how you got it.
- Whether it has a loan or lien.
- Whether a form names who will receive it at death.
- Which records show where it came from.
Which documents should the plan cover?
A will can state how your probate assets should pass. It can also name an executor to handle the estate, subject to the court process. A will does not give you control over your spouse’s share. It does not replace every account’s form for naming who inherits.
A power of attorney lets someone make certain choices for you while you are alive. A trust may serve other goals. But the trust needs the right terms, and you must take the steps to fund it. Signing a trust does not move all your assets into it.
Discuss wills, estate plans and your wishes for care with your lawyer. Ask what need each document meets.
What if a married person dies without a will?
The spouse who lives does not always receive all the assets of the spouse who died. The result depends on the type of assets and the family tree.
For the couple’s community property, children from a past relationship can change who inherits. Separate property follows different rules. Read §§201.002–201.003 and our guide to probate without a will for examples.
When should you review the plan?
Check it after a marriage, divorce, birth, death or major change in what you own. Review account forms as well as the will. Bring the full plan so your lawyer can read the documents together.
A sound plan can save your family work and doubt. It does not promise that probate will never be needed. Book a consultation to discuss your assets, goals and next steps.