Dying Without A Will: The Texas Intestacy Statutes

by Rania Combs on October 18, 2010

Dwight D. Eisenhower once said that “America is best described by one word: Freedom.” His quote basically sums up what makes America unique.

We Americans relish our freedoms. We want to live how we like and spend our hard-earned money on what we want. And we resist when the government tries to interfere with our lives. However, less than half of all Americans have even the most basic estate planning documents. As a result, they voluntarily give up their freedom to decide what will happen to their assets when they die.

The law gives you the freedom to decide how and to whom your assets are distributed when you die by making a will. But if you die without a will, your assets will be distributed according to a statutory formula that doesn’t take into account your wishes and unique circumstances.

Below is a summary of the way the assets of those who die without a will in Texas are distributed.

Intestate Distribution For Single People With No Children

If a you are single and die without a will in Texas, the Texas Probate Code dictates that your assets will be distributed as follows:

  1. Your estate will pass equally to your parents if both are living. If only one parent is alive, and you don’t have any brothers or sisters, then your entire estate will pass to your surviving parent.
  2. However if you do have siblings or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate, and the remaining one half would be divided among your siblings or their descendants.
  3. All of your estate would pass to your siblings or their descendants if you have no surviving parents.
  4. If you have no surviving descendants, parents, siblings, or descendants of siblings, then the estate is divided into two halves with one half passing to relatives on your mother’s side of the family and the other one half passing to relatives on your father’s side.
  5. If one side of the family has completely died out, the entire estate would pass to the surviving side of the family.
  6. On rare occasions, when an unmarried person dies without any surviving heir, his estate will pass to the State of Texas.
  7. Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a will.

Intestate Distribution for Those Who Die Unmarried with Children

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, that all are your children or all are your grandchildren), then the assets will be divided equally between them.

However, if your descendants are of different degrees of relationship, (meaning some of your children predecease you, leaving children or grandchildren of their own), then the younger generation would only be entitled only to the share the older generation would have received had he or she survived.

Intestate Distribution for Those Who Die While Married

Many people may assume that if they are married and die without a will in Texas, their surviving spouse will inherit their entire estate. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.

Community Property

All property acquired during a marriage is presumed to be community property. Under Texas laws, if you are married and are survived by a spouse and children, then:

  1. Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;
  2. Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property.

Separate Property

If your property is characterized as separate property, the distribution scheme is different:

  1. If you are survived a spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until his or her death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.
  2. If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate personal property. But if you have surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate real property with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.

If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will.

Return to Texas Wills and Trust Online home page →

{ 23 comments… read them below or add one }

Twyla April 19, 2012 at 6:14 am

MY BROTHER HAS BEEN MARRIED AND HAS SOME SURVIVING STEPCHILDREN, BUT HE WISHES TO LEAVE HIS ESTATE TO HIS SIBLINGS, WOULD THOSE STEPCHILDREN HAVE ANY RIGHT TO THE ESTATE UNDER TEXAS LAW?

Reply

Rania Combs April 19, 2012 at 1:17 pm

No. Stepchildren are not entitled to inherit from a stepparent’s estate under the Texas intestacy statutes.

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Victoria July 10, 2012 at 1:13 am

My grandfather has been paying the taxes on an acre of land that belonged to his deseased wife. He has been paying the taxes for over 10 years. They have no children but she has children from a previous marriage. He has never had any problems with them wanting the land until recently when they wrote him a letter. She left no will. He has all the paperwork proving that he has paid the taxes on the land for the past 10 or more years. I know the land is classified as “homestead land.” Would this be considered community property or personal property?

Reply

Rania Combs July 12, 2012 at 1:00 pm

If property is acquired before marriage, or by gift, devise or descent, the property would be separate property.

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Kelsi July 11, 2012 at 9:44 pm

My father passsed away without a will in Texas..I am wondering what will happen…my stepmom is still living and I have 2 grown stepsisters and 1 full brother. Will everything go to her? She also has cancer and she has a will leaving everything to my brother and I…not my stepsisters…she has been trying to sell some things and my brother and i are having to sign papers that we are not contesting the sale…what does that mean?

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Rania Combs July 12, 2012 at 12:12 pm

Thanks for your question. The following article explains the intestate distribution scheme in situations involving blended families: The Complexities of Intestacy in Blended Families.

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Daniel August 6, 2012 at 10:18 am

What happens if a couple dies, and one spouse has a will, but the other does not? They have surviving children, and no stepchildren.
Thanks.
dan

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Rania Combs August 6, 2012 at 3:29 pm

The estate of the spouse who died testate will pass according to the terms of the will, while the estate of the spouse who died without a will would pass according to the intestacy statutes.

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Bianca Delgado December 22, 2012 at 5:39 pm

Does the state automatically start the process on distributing the assets if there is not will? Or what do I have to do in order to get the process going on the distribution of assets?

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Rania Combs January 2, 2013 at 10:51 am

It depends on what type of assets the estate contained. It may be that all the estate’s asset were non-probate assets, such as insurance policies and retirement plans. Those assets pass outside the will through beneficiary designation with no requirement of probate. If the estate contained assets that require probate, the type of proceeding will depend on the size of the estate. A small estate affidavit may be all that is required for small, uncomplicated estates, while a determination of heirship proceeding may be necessary for larger, more complicated estates.

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Rania Combs January 2, 2013 at 2:56 pm

The state does not initiate any distributions. The process will depend on the size of the estate and the type of assets it contains.

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Cory December 24, 2012 at 6:45 pm

My stepfather recently passed away without a will. The only assets are their home, purchased together, a death benefit from his employer equal to his salary during his last year of employment (approx 48K). I have 3 stepbrothers. Will they receive half of the death benefit from the employer? And if we sell the house, they will be entitled to half the proceeds? They have mentioned that they want my mother to have everything, but I assume we would need to get this in writing? Thanks for any help…

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Rania Combs January 2, 2013 at 10:36 am

Thanks for your question, Cory. Please accept my condolences for your loss. The following article will discusses intestacy in blended family situations: The Complexities of Intestacy in Blended Families. Non-probate assets, such as 401Ks and insurance policies, pass by beneficiary designation rather than through the will.

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Terry Lee December 28, 2012 at 9:59 am

My brother passed away last Sunday and left no will that I can find. He was living with his girlfriend for 13 years as husband and wife. He has two children from a former marriage which he has not seen for over 20 years and no one knows their whereabouts.
Who qualifies as executor and beneficiary of his estate?

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Rania Combs January 2, 2013 at 10:24 am

Thanks for your question, Terry. Please accept my condolences for your loss.

Since your brother died without a will and did not name an executor, the court will appoint a personal representative of the estate. An application for the appointment of an administrator can be combined with an application for probate, and a person interested in either the probate of the will or the appointment of a personal representative can apply for both.

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Rae December 31, 2012 at 1:31 pm

My husand passed away in October. We have one child. He has one child from a previous marriage. What is his child entitled to? What are his parents entitled to, as they are trying to take everything they can from me

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Rania Combs January 2, 2013 at 10:15 am

Thanks for your question, Rae. Please accept my condolences for your loss. The following article will discusses intestacy in blended family situations: The Complexities of Intestacy in Blended Families.

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James January 9, 2013 at 10:58 pm

Is there a statute or a part of the constitution that gives a surviving spouse a right to occupy homestead real property of the deceased.

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Rania Combs January 9, 2013 at 11:21 pm

Article 16, Section 52 of the Texas Constitution gives the surviving spouse a life estate in the homestead.

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Toni December 1, 2014 at 6:55 pm

My father just recently passed away, we can not find his handwritten will. My younger sister and I are his only biological children. He was not married. Do we have to go through probate?

Thank you.

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Rania Combs December 8, 2014 at 12:28 pm

Please accept my condolences for the loss of your father.

Whether or not you will need to go through some type of probate proceeding will depend on what type of property was in your father’s estate. For more information, read: Is Probate Always Necessary?

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John December 5, 2014 at 1:16 am

My father died without a will in Texas. His children are spread out among the states; but one is still in Texas. He has no property, but he has money in a bank. We don’t know if he has debts.

If he does would his children be responsible for them?

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Rania Combs December 8, 2014 at 12:35 pm

As long as none of the children are a party to the debt, the children will not be personally responsible for the debt. Generally, it is the deceased person’s estate that will be responsible to pay any outstanding debt.

Reply

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