If you die without a will in Texas, state law creates one for you. The Texas laws of intestate succession determine who inherits property if there is no will and how much they get. Unfortunately, this may have unwanted consequences. In this blog, we briefly summarize the rules of inheriting property without a will in Texas.
Who Inherits Property If There Is No Will?
When a person passes away without creating a valid will, Texas laws of intestate succession apply. The law determines who can inherit your property if there is no will. Let’s look at a few scenarios to show how the law works. As a visual guide to the explanations that follow, see this state provided chart illustrating property distributions when there is no will.
Decedent Is Married
It’s a false assumption that the surviving spouse gets everything when their husband or wife dies. Factors like how the property is characterized and whether or not you have children together impact who inherits the assets.
Community Property
Spouses can own two types of property: community and separate property. Community property includes almost any property acquired during a marriage.
Under Texas law, the surviving spouse inherits all community property if the children belong to both spouses. If you have a blended family, your spouse keeps their half of the community property, and your half goes to your children. If you have no children, then your surviving spouse gets all of the community property.
Separate Property
Separate property is the property that either spouse owned prior to marriage or that was acquired during the marriage by gift or inheritance. The rules for dealing with separate property are a bit trickier. Separate property is further divided into real and personal property. If a married person dies without an estate plan, the state allocates one-third of personal property to the surviving spouse and the remaining two-thirds to the decedent’s children. Real property, however, ownership generally passes entirely to the children, but the surviving spouse retains the right to use and control the property for the remainder of their life. If there are no children, all personal property goes to the surviving spouse, while real property may be divided amongst the surviving spouse and other relatives. We recommend speaking with one of our probate lawyers to understand how the law applies to your specific situation.
Decedent Is Single with Children
If a person without a spouse dies, leaving children behind, all property passes to the children in equal shares. The rules change a bit if the decedent also has grandchildren. If only grandchildren survive, then the property is distributed equally to them. However, If some children are alive and others have passed away but left grandchildren, the property is divided in equal shares as if all children were still alive, and the share of any deceased children passes through and is then divided equally amongst that child’s children.
For example, let’s say the decedent has three children. When the decedent dies, two of his children are still alive, and the third who passed away left two children (i.e., the decedent’s grandchildren). The decedent’s two children each receive one-third of the estate, and the remaining one-third is passed to the deceased child’s children (the grandchildren) in equal shares.
Decedent Is Single with No Children
When a single person dies without any surviving children, their estate passes in the following order:
- If both parents survive the decedent, they inherit the entire estate in equal shares;
- If one parent survives and the decedent has no siblings, the surviving parent inherits everything;
- If one parent survives and the decedent has siblings or nieces and nephews, the surviving parent inherits one-half of the estate, and the remaining half goes to the siblings or their children;
- If no parents survive the decedent, the entire estate goes to the siblings or nieces and nephews in equal shares;
- If there are no surviving parents, siblings, nieces, or nephews, half of the estate goes to relatives of the decedent’s maternal side, and the other half goes to relatives of the decedent’s paternal side;
- If there are no surviving relatives on either the maternal or paternal side, the surviving side of the family inherits the entire estate; and
- If there are no surviving relatives on either side of the decedent’s family, the state gets the estate.
The distribution of property under the law may vastly differ from what you intended, especially in situations with blended families. It also opens the door to family feuds and costly litigation when the time comes to administer the estate.
Not All Property Passes Under the Laws of Intestacy
Texas intestate succession laws only apply to “probate assets.” These are assets belonging to the decedent that would have passed had there been a valid will. The law does not apply to assets with named beneficiaries like proceeds of a life insurance policy, payable-on-death bank accounts, retirement accounts, and property with a joint owner. These “non-probate assets” automatically transfer to the co-owner or named beneficiary whether or not there’s a will.
Robbins Estate Law Can Help
Whether you’re considering writing a will or dealing with an estate where the decedent died intestate, it’s important to know who gets the property if there is no will. At Robbins Estate Law, we know the intricacies of Texas intestate succession law. Our priority is helping families and navigating them through complex legal situations. To speak to an attorney, call our office, or go online to request a free consultation.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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