If you die without a will in Texas, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Texas.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
If you die with:
here's what happens:
|children but no spouse||children inherit everything|
|spouse but no children, parents, or siblings||spouse inherits everything|
|parents but no children, spouse, or siblings||parents inherit everything|
|siblings but no children, spouse, or parents||siblings inherit everything|
|a spouse and children who are also the children of your spouse||spouse inherits all of your community property, plus 1/3 of your separate personal property and the right to use your real estate for life
children inherit everything else
|a spouse and children who are not the children of your spouse||spouse keeps 1/2 of the community property, 1/3 of your separate personal property, and the right to use your real estate for life
children inherit everything else, including your 1/2 interest in the community property
|a spouse and parents||spouse inherits all of your community property, all of your separate personal property, and 1/2 of your separate real estate
parents inherit everything else
|one parent and siblings but no spouse||parent inherits 1/2 of your separate property
siblings equally share remaining 1/2 of your separate property
|a spouse and siblings, but no parents||spouse inherits all of your community property, all of your separate personal property, and 1/2 of your separate real estate
siblings inherit everything else
In Texas, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property -- as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.
If you want to learn more about how community property works, read Separate and Community Property During Marriage: Who Owns What?
Your spouse will inherit your half of the community property unless you leave descendants – children, grandchildren, or great grandchildren. If you have separate property (many spouses mix everything together and don't have any separate property) your spouse will inherit all or a portion of it. The size of your spouse's share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, they and your spouse will share your separate property.
If you and your spouse are legally separated -- but not yet divorced -- when you die without a will, your spouse will not be entitled to your property. If you're concerned about this area of the law, see an experienced attorney for help.
If you die without a will in Texas, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, and whether your spouse is also your children's parent. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Texas must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws themselves, you'll find a link to the Texas Probate Code at the end of this article.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about Texas intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There's No Will.
You can find Texas's intestate succession laws here: Texas Estates Code Ann. § § 201.001-201.003.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.