What happens to my estate if I don’t have a will?
August 5, 2010 at 1:14 pm , by John Worley
What Happens if you die without a will in Texas?
If you die without a will (“intestate”), in Texas, the state will ‘write one for you’. That is known as the law of descent and distribution. Contrary to popular belief, your estate will not go to the state (“escheat”), unless no heirs can be found. Your estate will be responsible for the costs of searching for your heirs, and for the legal costs of an ‘attorney ad litem’ whom the court will appoint to represent unknown and missing heirs.
More likely than not, the court will also appoint an Administrator to handle your estate, and the administration most likely will be a dependent administration; i.e. the Administrator is subject to court supervision in the administration of your estate. The Administrator must apply to the court for every action the Administrator wishes to take, the court may grant permission after a hearing, then the Administrator has to report back to the court on the actions taken, and the court then may approve the actions after a hearing. All those costs of administration are borne by your estate before any distribution is made.
Distribution is based upon marital status, presence or absence of children, whether the children are of the decedent and/or of the marriage, if parents or siblings survive, and the type of property in the estate. Note that adopted children are considered as natural-born, and sometimes may inherit from their natural parents as well as their adoptive parents. Children of the surviving spouse, but not the decedent’s natural children, are not heirs at law unless adopted by the decedent. Only children of the decedent, and of the surviving spouse, are “children only of the marriage”
The following chart shows intestate distribution in Texas (click link below to open a printable PDF):
Texas Intestate Succession
| Marital Status/Children | Property Type | Separate Property | Community Property |
| Married, any children not of the marriage | Real Property | 1/3 to spouse for life, remainder to children.
2/3 equally to children subject to life estate. |
1/2 owned by spouse
1/2 equally to children |
| Personal Property | 1/3 to spouse
2/3 equally to children |
1/2 owned by spouse
1/2 equally to children |
|
| Married, no children, parents surviving | Real Property | 1/2 to spouse
1/2 equally to parents. Parent’s portion to siblings, or sibling’s descendents, if parents deceased. |
All to surviving spouse |
| Personal Property | All to surviving spouse | All to surviving spouse | |
| Unmarried, no children, parents or siblings surviving | Real Property and
Personal Property |
1/2 to father, 1/2 to mother. Parent’s portion to siblings, or sibling’s descendents, if parents deceased. | No community property |
| Widow or widower with children | Real Property and
Personal Property |
Equally to children or their descendents | |
| Married, children only of the marriage | Real Property | 1/3 to spouse for life, remainder to children.
2/3 equally to children subject to life estate |
All to surviving spouse |
| Personal Property | 1/3 to spouse
2/3 equally to children |
Texas Intestate Succession chart (printable PDF)
Category Estate Planning / Tags: /
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John Worley is a local attorney with over twenty-five years of experience practicing law in the Dallas area. He attended Baylor University as an undergraduate and then received his Law degree from Baylor Law School. Upon graduation from Baylor Law School, he attended SMU School of Law where he received a graduate law degree specializing in Taxation...
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