What Happens If You Die Without a Will in Texas?

 By S. Tyler Swain, Managing Partner, The Swain Law Firm, P.C. — Houston, Texas

In more than thirty-four years of practicing probate and estate law in Houston, the single most common conversation I have with families is also the most avoidable one. A parent or spouse has passed away, the family is grieving, and someone finally asks the question no one wanted to raise: "Did he leave a will?"

When the answer is no, the law steps in and answers a different question for them — who inherits, and in what proportion. That decision is no longer the family's to make. It belongs to the Texas Estates Code.

Here is what actually happens, and why it matters more than most people realize.

Dying "Intestate" Means the State Writes the Plan

When a person dies without a valid will, they are said to have died intestate. Texas law then applies a fixed formula to distribute the estate. It does not consider what the person would have wanted, what was promised verbally, or which child took care of them in their final years. It applies a statute.

Most people assume that everything simply passes to the surviving spouse. In Texas, that is often not the case, and the reason surprises nearly every family I sit down with.

Community Property vs. Separate Property

Texas is a community property state, and that distinction drives almost everything in an intestate estate.

Community property is generally what the couple acquired during the marriage. Separate property is typically what a spouse owned before the marriage, or received individually by gift or inheritance.

The two are treated very differently when there is no will.

If a married person dies intestate and all of their children are also the children of the surviving spouse, the community property will generally pass to that spouse. This is the scenario most people picture, and it tends to work out roughly as the family expects.

But if the person had children from a previous relationship, the outcome changes significantly. The deceased spouse's one-half interest in the community property may pass directly to those children rather than to the surviving spouse. I have seen a surviving widow discover that she now co-owns her own home with adult stepchildren she has not spoken to in a decade. Nothing improper occurred. That is simply what the statute directs.

Separate property is divided differently again, with the surviving spouse and the children each taking defined shares, and real property in particular being split in ways that frequently leave multiple parties owning fractions of a single house.

Someone Still Has to Go to Court

A common misconception is that skipping the will also skips the courthouse. The opposite is usually true. Without a will naming an executor, the family typically must open a probate proceeding and ask a court to formally determine the legal heirs. This is often done through an Application to Determine Heirship.

In that proceeding, the court will generally appoint an attorney ad litem whose job is to represent the interests of any unknown or missing heirs. Witnesses may need to testify about the family history. Only after the court identifies the heirs can someone be authorized to administer the estate, pay valid debts, and distribute what remains.

None of this is insurmountable. Texas probate is, on the whole, more efficient than in many other states. But an intestate estate is almost always slower, more expensive, and more contentious than one guided by a well-drafted will.

The Practical Costs Families Do Not Anticipate

Beyond the legal fees and the delay, three consequences tend to cause the most damage:

Property becomes difficult to sell or refinance. When a house passes to several heirs in undivided fractional shares, every one of them generally must agree in order to sell. One holdout can freeze the asset indefinitely.

Family relationships fracture. Grief and money are a volatile combination. When the law produces a result that feels unfair to someone — and it often does — the resentment tends to land on siblings rather than on the statute.

Minor children have no designated guardian. For parents, this is the most serious gap of all. A will is the primary instrument for naming who will raise your children if you cannot. Without one, a court decides.

What to Do If You Are Facing This Right Now

If a loved one has passed away without a will, the most useful thing you can do is act early. Gather the death certificate, a list of assets and debts, deeds to any real property, and a clear picture of the family tree, including any children from prior relationships. Then speak with a probate attorney in your state before anyone signs anything, transfers a title, or distributes funds. Well-intentioned early moves can create real problems later.

Intestacy rules vary considerably from state to state, so general information — including this article — is no substitute for advice about your specific situation.

And If You Are Reading This in Advance

Then you are in the fortunate position of still having a choice.

A basic estate plan is not the exclusive province of the wealthy, and it is not as burdensome as most people assume. For the majority of families, a will, a durable power of attorney, a medical power of attorney, and a properly titled set of assets will accomplish nearly everything they are worried about. It is, without exaggeration, one of the highest-return uses of an afternoon that I know of.

The families who struggle most are rarely the ones who planned imperfectly. They are the ones who never got around to planning at all.

---

S. Tyler Swain is the Managing Partner of The Swain Law Firm, P.C. in Houston, Texas. He is an honors graduate of Baylor University and earned his law degree from South Texas College of Law. For more than twenty-five years, he has advised Texas families and businesses on probate, estate planning, and real estate matters. Learn more at tylerswain.com.

This article is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.