What happens when there is no will? If you fail to make a living will before you die, your estate will be distributed according to the Texas Law outlined in the Texas Estates Code.
What Is Intestate Succession?
Intestate succession refers to the process by which Texas law distributes a person’s assets when they die without a will. The law prioritizes heirs based on their familial relationship to the deceased, with surviving spouses, children, and other close relatives generally receiving the estate. However, this process may not align with your personal preferences, which is why an estate plan and properly drafted will is essential.
What Property Is Affected by Intestate Succession?
Not all assets are handled by intestacy law. Some properties may bypass probate and go directly to beneficiaries (e.g. life insurance, retirement accounts, transfer on death deeds, transfer‑on‑death accounts).
Different Types of Property: Community Property vs Separate Property
In Texas, state law classifies assets into two primary categories: community property and separate property. These classifications impact how your estate is divided when you die without a will.
Community Property
- Acquired during marriage (except gifts or inheritance)
- Typically includes income, real estate, and joint purchases made while married
Separate Property
- Acquired before marriage
- Inherited or gifted property
- Real estate or other assets clearly designated as separate
The classification of property will affect the division of the estate in the Court when someone dies without a will.
How Is the Property Distributed From a Person Who Dies Without a Will?
Below are possible scenarios under Texas Estates Code:
Scenario 1: Surviving Spouse & Children (All children are children of surviving spouse).
- Surviving spouse inherits all of the community property.
- Surviving spouse inherits 1/3 of separate personal property and a 1/3 life estate in separate real property.
- The remaining 2/3 of the separate personal property is divided among the children.
Scenario 2: Surviving Spouse & Children from Another Relationship (Blended Family)
- The surviving spouse retains his/her 1/2 interest in community property.
- The deceased spouse’s 1/2 interest in the community real property and personal property goes directly to decedent’s children.
- The spouse inherits 1/3 of separate personal property and a 1/3 life estate in separate real property.
- The remaining 2/3 of the separate personal property is divided among the children and all separate real property subject to the surviving spouse’s 1/3 life estate goes to children.
Scenario 3: Not Married with Children
- All probate property passes to children or to children’s descendants by representation.
Scenario 4: Married Person, No Children
- The spouse inherits all of the community property.
- Separate property is distributed differently if parents or siblings are living of the deceased spouse.
The Risks of Dying Intestate
When a person dies without a Will, Texas probate law determines:
- Who gets what
- Who inherits pursuant to the Texas Estate Code
- Who manages the estate
In many cases, meeting with a lawyer is helpful to understand the results of not having a will and the benefits of having a will.
How to Avoid These Risks: Planning With a Will
Creating an estate plan and drafting a will ensures that your assets are distributed according to your wishes. Here’s how to avoid the risks of dying intestate:
- Prepare and sign a valid Texas will specifying your desired beneficiaries, executor, and guardian for minors
- Incorporate trusts, if necessary, designate beneficiaries for nonprobate vehicles to further control your estate
- Review your will periodically (especially after marriage, divorce, births, deaths, or property changes)
- Work with an experienced estate planning attorney to ensure validity and legal compliance
Consult with a Trusted Will Attorney in Houston
If you have questions about your particular situation, our will lawyer in Houston can help you prepare a will and ensure that your property goes where you want it to go. Call Nimmons & Fronterhouse today to book a free phone consultation.
