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. Hi, What are the obvious benefits of having a will versus not having one in the event one dies? If one has no will and the state has to manage your estate, what percent of your estate goes to the state? Thank you

    • One of the biggest benefits of having a Will is that it allows you to choose how and to whom you want your assets distributed. If you don’t have a Will, your assets will be distributed according to a statutory formula. That does not mean, however, that the state will manage your assets or a percent of your estate goes to the state. It is only in rare circumstances when no heirs can be found that property will pass to the state.

  2. My father-in-law has stage 4 cancer. My mother-in-law has been dead for 2 years. In his will, he left everything to her. He has never changed it. Will the 4 children get everything equally? And does the state get any of the assets? This is in Texas

    • Wills usually identify contingent beneficiaries who will inherit if the primary beneficiary predeceases the testator. Those named as the contingent beneficiaries will inherit. The only time property escheats to the state is if a person dies intestate and has no heirs.

  3. Shannon says:

    My husband recently passed away. We own 2 homes, one we purchased together before we were married and the other one during our marriage. Is the house we bought before we were married community property or separate property? I am in Texas

    • Texas subscribes to the inception of title rule, which bases the property’s character on the time and manner in which a person first acquires an interest in the property. If property is purchased before marriage, then it would be characterized at separate property. Property purchased during a marriage is presumed to be community property.

      • shari Prouhet says:

        In relation to this question, my husband and I purchased the home we have lived in all of our marriage 9 months before the marriage but both of our names are on the deed to the home. Is it community property or seperate property for each of us?

      • Property purchased before marriage is characterized as separate property.

  4. My brother recently passed away in Texas. He and his wife have been divorced for about a year. He has 4 siblings, no children and no will. Both of our parents are passed. If his ex wife is still the designated beneficiary on a savings account will she inherit the money?

    • The Texas Estates Code provides that if after a decedent designates a spouse as a P.O.D. beneficiary on a P.O.D. account or other multiple-party account, the decedent’s marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, the designation provision on the account is not effective as to the former spouse unless:

      1. the court decree dissolving the marriage designates the former spouse or the former spouse’s relative as the P.O.D. payee or beneficiary;
      2. the decedent redesignated the former spouse or the former spouse’s relative as the P.O.D payee or beneficiary after the marriage was dissolved; or
      3. the former spouse or the former spouse’s relative is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.
  5. Hi I have a question. My dad recently passed away, and the land that his home is sitting on was purchased when he and my mom were together. His new wife and stepchildren not willing to share anything that he had with me or even allow me to have just a few things that belonged to him. Do I have any legal claim to what he had since the land was purchased before he’s married to his new wife? I don’t believe he left a will.

    • Property purchased before marriage is classified as separate property. Under the Texas Intestacy Statutes, when a married person dies without a Will owning real property that is characterized as separate property, the surviving spouse is entitled to only a life estate (the right to use the property until his or her death) in one-third of that property. The rest would be inherited outright by the children of the deceased spouse.

      However, a surviving spouse has a constitutionally protected life estate in homestead property and cannot be forced to sell the property as long as he or she occupies and uses it.

  6. My husband and I have a two year old daughter, he also has a 28 year old daughter that is not mine, he is sick now with cancer and has not made a will, what will happen with all of our stuff

  7. In the state of Texas if a parent dies and has a child under age 18 and a child who is over the age of 18 and both have different mothers one whom has passed away do both children get the estate split equally or does everything go to the minor child

    • When a single person dies without a Will and has children, all property will pass to his or her descendants. If all descendants are of the same degree of relationship, (meaning, for example, that all are the decedent’s children or all are his or her grandchildren), then the assets will be divided equally between them.

  8. My brother passed away with no will (single, no children). My father passed away several years ago leaving just myself and my mother. However my father had children from a previous marriage that we have no contact with. Are my half siblings entitled to my brothers estate? What does the breakdown look like?

  9. Hi Rania,

    Your site is full of great information!

    My mother is an only child and her father passed away last year in Texas. His wife (my mother’s step mom) didn’t inform my mother until almost a full year later of his death. My mother and her father lost contact over the years.

    What is my mother entitled too exactly? The stepmother had offered my mother $5,000 to take her name off some title so she can sell the home, but I feel my mother should be getting part of his personal property and part of the equity in their home. It was very strange, they only reached out to my mother when they needed something done, which I thought was very odd and a little fishy.

    Again, thank you so much for your time.

    • Hi Adam,

      I’m glad you’ve found my site helpful.

      When someone dies without a Will and has children from another marriage, one-half interest in the community estate will pass to the deceased person’s children, with the surviving spouse keeping only his or her one-half interest. With respect to separate property, the surviving spouse is entitled to one-third of the deceased spouse’s separate personal property and only a life estate (the right to use the property until his or her death) in one-third of the deceased spouse’s separate real property. The rest would be inherited outright by the children of the deceased spouse.

  10. Hi Rania. My mother in law recently passed away. Right before her passing she and my husband had consulted a lawyer and were in the process of getting a p.o.a and will done, but she passed before anything was finalized. She did write down everything and signed it. What would be our best option to move forward knowing what she wanted done.

    • Please accept my condolences for your loss. I recommend you consult the attorney to determine whether the writing you mentioned would constitute a valid holographic Will. If not, the intestacy statutes would control the disposition of your mother in law’s property.

  11. My dad passed away two months ago and left a reasonable amount in the form of retirement and life insurance, but did not leave a will. Would my mom inherit all of the money or would my sister and I receive any? I only ask because she is not good with money and we want to set up a security account with our inheritance just in case she spends too much and needs emergency funds.

    • Please accept my condolences for your loss.

      Assets such as retirement plans and life insurance policies typically pass by beneficiary designations. If a beneficiary is identified, the proceeds of the retirement plan and life insurance policy pass to the named beneficiary rather than through a Will.

      It’s always a good idea to consult a financial adviser after receiving an inheritance for sound financial advice.

  12. Hi Rania. Thank you for this post and for very kindly assisting all of us trying to sort through the loss of a loved one. My father just recently passed away without a will in Texas. I am one of 4 siblings and my father is divorced. I understand that we, the heirs, are all entitled to 1/4 of his “estate” which only includes an old beater car and less than $5,000 in cash. Do we HAVE to file something? We are my father’s only 4 heirs and we are all united on how Dad’s assets will be divided so there won’t be any arguing between us over what remains. Should we file a Small Estate Affidavit? Or if we don’t file anything other than my father’s death certificate, is that enough?

  13. David Lopez says:

    Hello Rania, your website is so helpful. We live in Texas and this is our situation: my wife’s dad passed away 20 years ago and didn’t have a will. He owned several properties (one being his business shop) and a home which were all acquired while being married to my wife’s mom. Nothing was ever done about distributing his assets. Now we found out that her mom has given (as a gift) all properties, including the home, to my wife’s sister. Does my wife have a right to the properties and home? Can she claim that since their dad never had a will, she inherited part of the assets? Or were the assets all inherited by the mom and she is free to give them away? Thank you

    • Thanks, David. I’m glad you find my website helpful.

      Under Section 201.003 of the Texas Estates Code, if a married person dies without a Will, the entire community estate of the deceased spouse passes to the surviving spouse, if the surviving spouse is also the parent of all the deceased spouse’s children.

  14. Rene Wimmer says:

    Hi Rania
    My mother-in-law moved in with my wife and I 7 years ago. She moved here from VA and divided her belongings with her 3 daughters. My wife, one of the 3 siblings, was her POA. My mother-in-law recently passed leaving basically nothing except enough money to bury her and her clothing. She died intestate. Will we still need to file an SEA with the court?

  15. Ted Brown says:

    In Texas, if my wife and I die, with no children, and both of our parents are alive, how are our assets handled if we don’t have a will?
    I appreciate your help!!!!!

    • When someone who dies without a Will is married but does not have any children, the surviving spouse will inherit all property classified as “community property.” With respect to property classified as “separate property,” the surviving spouse would be entitled to all the separate personal property; however, if the deceased person has 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.

      • Hello Rania, I am in the situation that you note above, my dear husband of 26 years died a little over a year ago and he did not leave a will. It was just not a discussion that either of could have at the time. He did have a notarized POA naming me for all matters, medical, legal, assets, as well as, all financial concerns. We didn’t have alot but he had a truck, motorcycle, and minimal Texas oil rights, that should be dealt with. I am his only wife, no children of the marriage. He was an only child, even though his mother raised a 2nd cousin as her daughter. His mother and father are deceased. Is there a legal action (probate) that I must take to establish ownership of his property, or how do I get the items in my name? Thank you for any guidance that you might offer. Ruth

      • Hi Ruth. I’m sorry for your loss. The following publication from the Texas Young Lawyers Association may answer many of your questions about the probate process: The Texas Probate Passport.

  16. Clay atkinson says:

    If my father went to a lawyer and made a will out, but he hasn’t finalized it. If something was to happen before he finalized it, what would happen to his belongings? He has remarried, has no separate property, and has three kids.

  17. Thanks for this site. It cleared up some info for me. Here’s my situation.

    My sister was married with 2 children (both from the same father). She died without a will. However, I have beed raising them since before my sister died. I have guardianship, but the father still has parental rights.

    From your article above, it says that her husband should inherit all her community property. Does that apply if he has not attempted to ever make contact or support his children? They are both under the age of 18, and I hope that some of my sister’s property would go to her children.

    Thanks for any guidance.

    • The intestacy laws are rigid and inflexible. They don’t take into account your unique circumstances and may dictate that your assets should be distributed in a way you would not have chosen

  18. My dad is divorced and I am the only child. He tells me everything that is his will pass on down to me automatically. Is this true? He didn’t put my name as a beneficiary for this reason.

    • Under the intestacy statute, if a single person dies and is survived by children, the children will be his heirs. However, title does not vest automatically in the heirs. For example, if a deceased person owned real property, probate would be required to transfer title to the heirs, unless the deceased person had previously executed a transfer on death deed. Assets such as life insurance proceeds, IRAs, retirement accounts pass outside of probate to the listed beneficiaries

  19. My dad passed away with no will. He and my mom have a house in both their names, which they still owe. Me and my two sisters want her to keep the house. Because there is no will do we still have to probate? If yes, can we just go to the county clerk office a file for probate and let the judge give mom the house? None of us would contest it, we want her to have it. That’s the only estate he had. We live in Texas. Thanks!

  20. Diego Tarcisio says:

    Hi Rania ! Congratulations for you website! Excellent work !

    See if you can help me.

    Me and my wife are Non-Resident Aliens. I opened an account in a U.S. Brokerage firm (Joint Tenant With Rights of Survivorship). If one of us die, Which laws would be applicable to the estate ?
    When I opened the account I was forced to indicate one American state but it wasn´t clear why, and I think it´s because legal questions like this one I´m presenting. I indicated the Texas State.

    Thank you very much

    • When spouses own property as joint tenants with rights of survivorship, a deceased spouse’s one-half interest automatically passes to a surviving spouse upon death, regardless of the intestacy statutes.

  21. Hi Rania I’m just reading all the comments to get some idea I love your site it will help me a lot.

    My husband passed away recently. We don’t have a will our house is under our names. Do I need to probate it? We have 3 cars and 2 cars are under his name how can I sell the cars.

    Hope you can help me thanks.

  22. Melinda Russell says:

    My ex-husband died without a will. However, I have an old will from when we were married. Is this will still valid?

    • Divorce does not invalidate a Will; however, the Texas statutes provide that if, after making a will, the testator’s marriage is dissolved, either by divorce, annulment or a declaration that the marriage is void, all the provisions in the will, including all fiduciary appointments, shall be read as if the former spouse predeceased the testator

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