Do I Need a Will in Texas? (Updated 2026)

Most Texans put off writing a will because it feels like something you do when you're old. But the question “do I need a will?” has the same answer at 28 as it does at 68: if you own anything, care about who raises your children, or have an opinion about what happens to your estate — yes, you need one.

Texas law does not leave your property in limbo when you die without a will. It applies a fixed formula called intestate succession. That formula is designed to cover the average family in the 1800s when the laws were written. It frequently does not match what you actually want.

What Texas Law Does If You Die Without a Will

When you die without a will in Texas, you die intestate. The Texas Estates Code — specifically Chapter 201 — kicks in and distributes your property according to a fixed schedule. (Tex. Est. Code §201.001 et seq.)

Texas is a community property state. This means property acquired during marriage is jointly owned by both spouses. Property you owned before marriage, or received as a gift or inheritance, is your separate property. Intestacy rules treat these two categories very differently.

If You're Married with Children

Your community property goes entirely to your surviving spouse — but only if all your children are also that spouse's children.(Tex. Est. Code §201.003)

Your separate personal property (cash, investments, vehicles) is divided one-third to your spouse and two-thirds to your children. Your separate real property (land, houses not bought during marriage) goes two-thirds to your children, and your spouse receives only a life estate in the remaining one-third — meaning they can use it but cannot sell it without the children's consent. (Tex. Est. Code §201.002)

If You're Married Without Children

Your community property goes entirely to your spouse. Your separate personal property also goes to your spouse. But your separate real property is split: your spouse gets half, and the other half goes to your parents (or if they are deceased, your siblings). (Tex. Est. Code §201.002)

If You're Single

Your estate passes to your children first. If you have no children, it goes to your parents. If both parents are deceased, it splits between your siblings. If you have no surviving family, Texas takes the property (escheat).(Tex. Est. Code §201.001) Unmarried partners, close friends, charities, and godchildren receive nothing — regardless of your relationship.

Five Reasons Every Texan Needs a Will

1. A Will Names Your Executor

Your executor manages the probate process — collecting assets, paying debts, filing the final tax return, and distributing property. Without a will, a court appoints an administrator, which can be someone you would not have chosen. Your will locks in exactly who does this job and can waive the bond requirement, which saves money. (Tex. Est. Code §304.001)

2. A Will Names Guardians for Minor Children

If you have children under 18, this is the single most important reason to have a will. Without one, a court decides who raises your children. Your will names your first-choice guardian and an alternate, and explains your reasoning. A court is not required to follow your designation, but in practice courts give it enormous weight. (Tex. Est. Code §1104.051)

3. A Will Controls Who Gets What

Intestacy gives your estate to your relatives in a fixed order, with no ability to leave anything to friends, godchildren, charities, or step-children. A will lets you direct specific items to specific people, leave a percentage to a charity, or skip a relative who doesn't need the money.

4. A Will Can Create a Trust for Minor Children

Without a trust in your will, a minor who inherits money receives it outright at 18 — without structure or guidance. A testamentary trust (created inside your will) holds the money until a smarter age, like 25 or 30, and names a trustee you trust to manage it in between.

5. A Will Can Simplify Probate

A properly executed Texas will — signed in front of two witnesses and notarized as a self-proving affidavit — can be admitted to probate without requiring witnesses to appear in court. (Tex. Est. Code §251.104)This saves your family time and attorney fees during an already difficult period.

Common Myths About Texas Wills

“My spouse gets everything automatically.”

Not in Texas. As explained above, separate property and children from prior relationships can significantly complicate what your spouse actually receives. This myth is the leading cause of unpleasant probate surprises for Texas widows and widowers.

“I'm young and don't have much, so I don't need one.”

If you have a car, a bank account, a retirement account without a designated beneficiary, or any minor children — you need a will. The cost and complexity of establishing one (under $300 with MaxWills) is far less than the cost of dying intestate with a family that disagrees.

“I can just write my wishes in a letter.”

A letter has no legal effect in Texas. Only a properly executed will — or a fully handwritten and signed holographic will — can direct how your estate is distributed. (Tex. Est. Code §251.051)

Stephen T. Bowling

Licensed Texas Attorney · Bar No. 24087194 · Founder, Texas Defense Team & MaxWills

Stephen practices criminal defense and estate planning in Travis County, Texas. MaxWills was built to make attorney-quality estate documents accessible to every Texan.