How Property Passes When You Die Without a Will in Texas

In Texas, if a person (the "Decedent") dies without a valid will, all probate property passes under the laws of “intestate” succession as set forth in Texas Probate Code Section 38. One common myth is that the property all passes to the State of Texas. That is completely untrue, as shown below. However, the consequences of dying without a Will are that you cannot dictate who will receive your property, who will act as the executor of your estate or who might be the guardian of your children. In effect, you have ceded those decisions to the State of Texas.

Dying without a Will also complicates how your estate will be administered and results in increased costs to the surviving heirs, and these consequences will be discussed in a later post. For now, it is important to understand how property is passed when you do not have a Will.

There are several scenarios that will determine who receives what, and it is governed by whether you are are married, have children (and whether you have children from a previous marriage), and whether your property is community or separate. Community property is basically all property acquired during the marriage (except property acquired with the separate property of a spouse). Separate property is property acquired by gift, under a Will, or through an inheritance.

The following are the different scenarios and the results under each scenario:

I. SURVIVED BY SPOUSE AND CHILD OR CHILDREN:

A. All surviving descendants of Decedent ARE also descendants of Surviving Spouse

1. Separate Real Property

a. 1/3 passes to Spouse for her life (with a remainder interest to children)
b. 2/3 is equally divided among children

2. Separate Personal Property

a. 1/3 to Spouse
b. 2/3 equally divided among children

3. Community Property

All to spouse

B. All Surviving descendants of Decedent ARE NOT also descendants of Surviving Spouse

1. Separate Real Property

a. 1/3 to Spouse for life (remainder to children)
b. 2/3 equally divided among children

2. Separate Personal Property

a. 1/3 to Spouse
b. 2/3 equally divided among children

3. Community Property

a. Decedent’s 1/2 Community Property is equally divided among his children
b. Surviving Spouse retains her 1/2 community prop. interest

II. SURVIVED BY SPOUSE, NO DESCENDANTS, AND BOTH PARENTS:

1. Separate Real Property

a. 1/2 to Surviving Spouse
b. 1/4 to father
c. 1/4 to mother

2. Separate Personal Property

All to spouse

3. Community Property

All to spouse

SURVIVED BY SPOUSE, NO DESCENDANTS, AND ONE PARENT:

1. Separate Real Property

a. 1/2 to Surviving Spouse
b. 1/4 to surviving parent
c. 1/4 to brothers and sisters of Decedent, if any, or to the children of a sibling, if a sibling is deceased

2. Separate Personal Property

All to spouse

3. Community Property

All to spouse

SURVIVED BY SPOUSE, NO DESCENDANTS, AND NO PARENTS:

1. Separate Real Property

a. 1/2 to Surviving Spouse
b. 1/2 to decedent’s brothers and sisters

2. Separate Personal Property

All to spouse

3. Community Property

All to spouse

SURVIVED BY NO SPOUSE, BUT WITH SURVIVING CHILD OR CHILDREN:

All property is equally divided among the children. Children of deceased children take their parents share.


SURVIVED BY NO SPOUSE AND NO CHILDREN:

1. Both of Decedent’s parents alive

a. 1/2 to Father
b. 1/2 to Mother

2. Only one of Decedent’s parents alive

a. 1/2 to surviving parent
b. 1/2 equally divided among Decedent’s brothers and sisters living, or if a sibling is not living, to his or her children then living

3. Neither parent of Decedent survives

All property is equally divided among Decedent’s brothers and sisters, or the children of a deceased sibling


As can be seen, complications can certainly arise on the death of a Texas resident who does not have a Will. The complications are compounded in second or third marriage situations where there are children from a previous marriage, and the surviving spouse suddenly finds herself sharing property with either her husband's children or his parents and siblings. To eliminate these possibilities, and to ensure your property passes to the persons you want, make sure you have a Will and that it is up to date.