What Happens If You Die Without a Will in Texas

If you die without a will in Texas, what happens to your estate? This is a question that brings much uncertainty, as well as many old wives tales. Contrary to the beliefs of many, the state does not take all your property. However, there are laws that govern the distribution of your estate. Your heirs don’t get to take what they want on a first come, first served basis.

When you die without a will, you are considered under the law to have died “intestate.” The Texas intestacy law clearly set forth rules for the distribution of your property, with the first distinction being made between what is considered community property and what is considered separate property. Under the community property laws of Texas, most property obtained during a marriage is community property and is considered to be owned by both spouses. Exceptions include inheritances, property received as a gift, or property obtained after a period of separation.

With respect to separate property, there are four different situations that can occur:

• A person may die intestate (without a will) leaving separate property, and have a spouse and children. In this case, Texas law gives one-third of the property to the surviving spouse and divides the remaining property between any surviving children. The surviving spouse is also entitled to one-third of any separately held land for life, with that property passing to children on death.
• A person dies without a spouse, but with children. In this circumstance, the property is divided equally among the children.
• A person dies intestate leaving a spouse, but no children. In this case, the spouse is entitled to all personal property and a one-half interest in real property for life. The remaining one-half interest in real estate goes to the parents of the deceased or, if one of the parents is no longer living, one-half to the living parent and one-half divided among all living siblings. If no parent survives the deceased, the one-half share is equally divided among all surviving siblings.
• A person dies without a spouse or children. This is the most complex case under the Texas intestacy laws:
  • If both parents survive the deceased, they receive the estate in equal portions
  • If only one parent survives, one half of the estate goes to the surviving parent and the remaining half is divided among all living siblings
  • If there are no surviving siblings, all property goes to the surviving parent
  • If there are no surviving parents, all property is divided equally among all living siblings
  • If no parents or siblings survive the deceased, the property is divided in two equal parts, with one part going to paternal relatives and the other part going to maternal relatives, as follows:
    • in equal portions to the grandmother and grandfather, if living
    • if only one grandparent survives, then half to the surviving grandparent and half to be divided equally among the descendants of the deceased grandparent
    • if neither grandparent survives, then to the nearest lineal ancestors, but never to the state

With respect to community property, the rules are much simpler, as property can only pass if there is a surviving spouse. Here are the rules:

• If there were no children of the marriage, the entire community property estate goes to the surviving spouse
• If the deceased had children who were also the children of the spouse, all property goes to the spouse
• If the deceased had children who were not children of the surviving spouse, the surviving spouse keeps a one-half share interest in community property and the other half is equally divided among the descendants of the deceased