Texas Intestacy: What Happens When There isn’t a Will?

What happens when an individual dies without a will in Texas? This is called intestacy and the individual is deemed to have died intestate. Since the deceased individual does not have a will, the State of Texas has a set of laws in the Texas Estates Code to determine who inherits and how property is distributed. As you’ll soon realize, it is not as straight forward as one might think. Unfortunately, this may mean that your estate would be distributed in a manner inconsistent with what you would have wanted for your spouse, children, or other family members. 

To understand the Texas Intestacy laws, we must first understand the basic characterization of property. These brief definitions will help you understand the Texas Intestacy laws and how an estate would be divided and distributed when a will is not present.

1. Community property: Any property acquired during marriage

2. Separate property: Any property acquired before marriage, through gift, or inheritance

3. Real property: Any and and homes attached to land

The below scenarios briefly summarize the effects of not having a will. Notice that the scenarios are broken down by marital status and if there are surviving children. Additionally, the type of property (community, separate, separate real property) determines which law to be used.

1. Married Individual with Children or descendants

   • Separate property (non real property): ⅓ to the surviving spouse and the remaining ⅔ to the children, equally

   • Separate real property: All to children, equally. Surviving spouse takes a ⅓ life estate meaning that the surviving spouse can live in the home and they retain the right to use the real property during their lifetime.

   • Share of community property when all children of the deceased are also children of the surviving spouse: All to the Surviving spouse

   • Share of community property when children are outside of the current marriage and are not shared with the surviving spouse: All to the children, equally. The surviving spouse takes none, but keeps their own share of community property

2. Married Individual without Children or descendants

   • Separate property (non real property): All to surviving spouse

   • Separate real property:

     1. If deceased individual is survived by both their mother and father: ¼ to mother, ¼ to father, remaining ½ to surviving spouse

     2. If deceased individual is survived by one parent and by siblings or other descendants: ¼ to surviving parent, ¼ to surviving siblings/descendants, remaining ½ to surviving spouse

     3. If deceased individual is survived by one parent and not by siblings or other descendants: ½ to surviving parent, remaining ½ to surviving spouse

     4. If deceased individual is not survived by a parent, but by siblings or other descendants: ½ to surviving siblings/descendants, remaining ½ to surviving spouse

     5. If deceased individual is not survived by a parent, siblings or other descendants: All to surviving spouse

3. Unmarried Individual with Children or descendants: All property passes to children, equally

4. Unmarried Individual without Children or descendants

   • If deceased individual is survived by both their mother and father: ½ to mother, ½ to father

   • If deceased individual is survived by one parent and by siblings or other descendants: ½ to surviving parent, ½ to surviving siblings/descendants

   • If deceased individual is survived by one parent and not by siblings or other descendants: All to surviving parent

   • If deceased individual is not survived by a parent, but by siblings or other descendants: All to surviving siblings/descendants

As you can see, things are not as simple as one might hope. In addition to the distribution issues, let’s not forget that the probate itself will drastically increase in cost and length due to the complexity, the addition of the court appointed ad litem attorney, and the additional steps required from all legal heirs.

These issues can be easily avoided by having a will prepared. Having a will not only gives you the freedom to choose how your estate will be distributed and to whom, but it will also allow you to streamline the probate process for your loved ones.

The information contained in this post is provided for informational purposes only, and should not be construed as offering legal advice, or creating an attorney client relationship.