Dying Without A Will: The Texas Intestacy Statutes

The law gives you the freedom to make a Will that distributes your property how and to whom you wish. But if you die without a Will in Texas, a statutory formula, that does not take into account your wishes and unique circumstances, determines how your property will be distributed.

Below is a summary of how property is distributed when someone dies without a Will in Texas.

Who Inherits Property When a Single Person With No Children Dies Without a Will in Texas?

If a you are single and die without a will in Texas, your property will be distributed as follows:

  1. Your estate will pass equally to your parents if both are living. If one parent has died, and you don’t have any siblings, then your 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. 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 parents, siblings, or descendants of siblings, then the estate will be divided into two halves. One half will pass to relatives on your mother’s side. The other half will pass to relatives on your father’s side.
  5. If one side of the family has died out, the surviving side of the family would inherit the entire estate.
  6. On rare occasions, when an unmarried person dies without any surviving heirs, his estate will pass to the State of Texas.

Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a will.

Who Inherits When a Single Person with Children Dies Without a Will?

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, 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 survive while others predecease you, leaving children or grandchildren of their own), then the younger generation will inherit only the share the older generation would have received had he or she survived.

For example, supposed you had three children. If all three survive you, then each will receive 1/3 of your estate. If one dies before you, but has two surviving children, then the two surviving children would inherit 1/3, but the children of the deceased child would split their parent’s share. However, suppose all the children predecease you, and 6 grandchildren in total survive you. In that case, your estate would be split into 6 shares, one for each grandchild.

Who Inherits When A Married Person Dies Without a Will in Texas?

Many people assume that a surviving spouse will inherit all a deceased spouse’s estate if they die without a Will in Texas. 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

In Texas, there is a presumption that all property acquired during a marriage community property. Under Texas laws, if you are married and your spouse and children survive you, 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

Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The intestate distribution formula is different for separate property:

  1. If your spouse and children survive you, your surviving spouse will receive one third of your separate personal property. However, your surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. Your children would inherit the remaining interest outright.
  2. If you are married, but don’t have descendants, your separate personal property will be distributed to your surviving spouse . However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula.

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

This post was originally published on October 18, 2010, and updated on April 9, 2020.

Comments

  1. Grandfather passed away and left everything to grandmother in the will. Their house title is in both their names. 2 daughter belong to the both of them. IF there was not will (dont want to have to go through probate court to sell the house) the home now belongs to the wife correct?

  2. Veronica says

    My father passed away recently and I was wondering if and how I can go about renting his house out since it’s still under his name. Not sure what the first step to do is to be able to do that. The property is here in Texas.

  3. Israel Garcia says

    My Parents are both still alive and my mom acquired a piece of land a few years ago. If she passes as it is only in her name, does my dad get the rights too the house? Do we need a will for this or is he ok assuming he automatically inherit rights to this property?

    • If a real estate is characterized as separate property, a surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of the property. The deceased spouse’s children would inherit the remaining interest outright. I recommend your parents talk to an estate planning lawyer to ensure their property passes as they wish.

  4. My brother passed away almost 4 years ago. He had a surviving spouse and 1 child. He had a house he purchased before he was married and it is still not paid off. My parents had been living in the house and paying mortgage and taxes on the home as my brother and his wife bought a new home together. After his death I moved into the home to continue paying on the mortgage. His wife does not really care or want the responsibility of this house. All mortgage statements are under the “Estate” of my brother. I’d like to know what is going to happen to this home since his surviving spouse has not done anything to claim it and doesnt seem to have interest in it. Is there anything that we can do? Parents or sisters?

    • Property owned before marriage is separate property. Under the intestacy statutes, a surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of separate real property. The deceased spouse’s child or children would inherit the remainder. After proceeding to clear title to the property, the property could be deeded to someone else.

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