Dying Without A Will: The Texas Intestacy Statutes

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.

Comments

  1. 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?

  2. Victoria says:

    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?

  3. 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?

  4. 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

    • 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.

  5. Bianca Delgado says:

    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?

    • 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.

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

  6. 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…

  7. 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?

    • 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.

  8. 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

  9. 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.

  10. 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.

  11. 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?

    • 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.

  12. My father passed away three years ago without a will. I did not receive any money from either of his life insurance policies. My stepmother has all of his assets. Shouldn’t I have received 1/3 of his insurance policies?

  13. My father just passed away in December and although we know there is a will, we can’t find it. How long can you wait to start the probate process? We’d like to give ourselves time to locate the will before we have to go through the process without one as he has children from a previous marriage and it is a more complicated probate procedure.

    Thank you.

  14. My father just passed away and I don’t think he had a will. My name is on his checking account but I’m not sure what rights that might give me. He was not married and I was the only child of his that spoke to him. How do I go about finding out if I were to able to take over his home or not?

    • Please accept my condolences for your loss, Nancy.

      When someone dies without a Will, their assets are distributed according to a statutory formula, which I outline in this article.

      There are some assets, such as bank accounts with a pay on death designations, or insurance policies with beneficiary designations, that will pass to the beneficiaries identified. Additionally, accounts held as joint tenants with rights of survivorship will pass to the survivor of the account.

  15. Hello. My mother passed away a month ago. I found a will that was made before she divorced. The will lists stepchildren that have no relation to her as beneficiaries. Do they have any claim on my mothers money?

    • Please accept my condolences for your loss. Section 123.001(b) of the Texas Estates Code specifically addresses this issue. It provides that if a testator divorces, the entire Will is read as though the former spouse, and relatives of the former spouse who are not relatives of the testator, predeceased the testator.

  16. Alicia says:

    My mother recently passed away. I was told that she had a will, but I can’t find it for the life of me. My mom did NOT want my sister to get ANY money as all of her friends would agree. Is there any way to fight for more of her estate?

    • Please accept my condolences for your loss.

      Unfortunately, the intestacy statutes are rigid and inflexible. Without a Will, her assets will pass according to a statutory formula that doesn’t take into account her wishes.

  17. Melissa says:

    My father died 13 years ago without a will. My mother kept the home they purchased together during their marriage in both their names. She is no longer able to maintain the home and wants to move in with me (daughter). Does she need to have something in writing from all three of her children in order to do sell her home in Texas?

    • Your question depends on whether your father had children who were not also your mother’s children.

      In Texas, if someone dies without a Will and is married with children, the surviving spouse will inherit the deceased spouse’s one-half share in the community property if all the children of the deceased spouse are also the children of the surviving spouse. Otherwise, the deceased spouse’s one-half interest in the community estate will pass to his his or her children, with the surviving spouse keeping only his or her one-half interest.

  18. My mother died in June of 2013 from cancer with no will. She was married, had two sons from previous marriage and a me with her current husband. No probate was filed. My dad died in December of 2014 unexpectedly with no will, widowed, two stepsons and me, his daughter. I’m trying to figure out the next steps. All they owned was a small piece of land and lots of bills (medical mostly). Where do I start and what do I need to do to get that small piece of land in my name? Also is there a time frame?

  19. Myra Cosgrove says:

    my husband and have, between us, five children. Do we need a lawyer to write a will or can we print one off Internet and do it ourselves if we have it notarized and stored safely? And if we don’t write a will would our estate be divided among the children.

    If one of us dies before the other, will the surviving spouse inherit all. Or would the surviving spouse inherit 1/2 with the other half being divided among all five children?

  20. Rick anderson says:

    My ex brother in law just died. He and my sister had 2 children during their marriage. They had been divorced about 2 years before his death. Neither one had remarried and we have found no will. Who would be entitled to his estate?

    • The Texas Intestacy Statutes provide that if a single person dies without a Will and has children, then all property will pass to the deceased person’s descendants. If the descendants are of the same degree of relationship, then the assets will be divided equally between them.

  21. Thank you so much for this webpage and your helpful answers to everyone. My mother is in hospice care with stage IV cervical cancer and never got around to writing her will. She is now almost bed-ridden, so it looks like she will probably end up dying without one. She is not married and I am her only child. Will it still be a lengthy hassle to have her home and vehicles put in my name? Will an heirship proceeding be necessary, since I am the only child? When the time comes, where should I start first–do I need to petition to administer her estate? I am aware of the existence of small estate affidavits, but I do not yet know if her estate is worth more than $50,000 once her bank account, vehicles, and jewelry are taken in account.

  22. Hi My mother passed away sudden and was divorced but left no will or power of attorney. There are 4 of us adult kids and we are all on the same page of selling her car. How will we do this with out a sign title. We live in Texas. Thanks for your help

  23. My father died without a Will. He wasn’t married but had a minor child and an adult child. He had insurance. Are the children entitled to the proceeds of the insurance policy?

    • Beneficiary designations control who will receive the proceeds of an insurance policy. However, if no beneficiaries are designated, then policy provisions will dictate how the benefits will be paid. Often, the benefits become part of the decedent’s estate and will be distributed according to the Texas Intestacy Statutes if there is no Will.

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