What Happens If You Die Without a Will in Texas?

When someone dies without a will in Texas, they die “intestate.” Texas law takes over and distributes the estate according to Chapter 201 of the Texas Estates Code — a set of rules written to approximate what most people would probably want. The problem: it often doesn't.

The intestacy formula is rigid. It cannot be adjusted after death. And the results frequently surprise and upset surviving families who assumed the outcome would be different.

The Texas Intestacy Formula

Texas is a community property state. This distinction drives nearly every intestacy outcome. Property acquired during marriage is community property, jointly owned 50/50 by both spouses. Property owned before marriage, or received as a gift or inheritance during marriage, is separate property.

Married, All Children Are From This Marriage

• Community property: All to your surviving spouse. (Tex. Est. Code §201.003(a))
• Separate personal property (cash, investments, vehicles): One-third to spouse, two-thirds to children in equal shares. (Tex. Est. Code §201.002(b))
• Separate real property (land, homes): Your spouse receives only a life estate in one-third — they can live there but cannot sell without children's consent. Two-thirds to children. (Tex. Est. Code §201.002(b))

Married, With Children From a Prior Relationship

• Community property: Your half of community property goes to your children — not your spouse. Your spouse keeps their own half but receives none of yours. (Tex. Est. Code §201.003(b))
• Separate property: Same split as above — spouse receives one-third of personal property and a life estate in one-third of real property; children receive the rest.

Scenario: You die leaving a $400,000 house (purchased during marriage, worth $400,000) and $100,000 in a brokerage account (purchased during marriage). You have a surviving spouse and two children from your first marriage. Your spouse receives their own $200,000 share of the house and the brokerage account — but your $200,000 share of the house and your $50,000 of the brokerage account pass to your children. Your spouse now co-owns the home with your children from another relationship.

Married, No Children

• Community property: All to surviving spouse.
• Separate personal property: All to surviving spouse.
• Separate real property: Half to surviving spouse; half to your parents or, if deceased, your siblings. (Tex. Est. Code §201.002(a))

Single, With Children

Everything passes to your children in equal shares. If any child predeceased you and left children of their own, those grandchildren take the deceased child's share. (Tex. Est. Code §201.101) This is called “per capita with representation” and is the default distribution method in Texas intestacy.

Single, No Children

Your estate goes to your parents first. If both are deceased, it splits between your siblings. If you have neither parents nor siblings, it passes to more distant relatives — grandparents, aunts, uncles, cousins — in a specific order defined in (Tex. Est. Code §201.001). If no living relatives can be found, your estate escheats to the State of Texas.

Who Gets Nothing Under Texas Intestacy

Texas intestacy law recognizes only legal family relationships. The following people receive nothing, regardless of your relationship with them:

• Unmarried partners — a partner of 20 years receives nothing unless you were legally married
• Step-children — children your spouse brought to the marriage are not your legal heirs unless you adopted them
• Godchildren and close friends — no legal relationship, no inheritance
• Charities — intestacy cannot make charitable gifts
• Estranged relatives — the law does not know about your family history; an estranged sibling has the same claim as a close one

The Probate Process Without a Will

A will can simplify probate significantly. Without one, the process typically takes longer and costs more:

• No executor named: The court appoints an “administrator” — often requiring a bond that costs money every year the estate remains open.
• No self-proving affidavit: Witnesses to the alleged oral or written wishes of the deceased must appear in court.
• No executor powers granted: The administrator's authority may be more limited, requiring court approval for actions an executor could take independently.
• Heirship determination required: If the estate is not simple, the court must formally determine who the legal heirs are — an additional legal proceeding. (Tex. Est. Code §202.002)

Texas does allow a simplified affidavit of heirship process for real estate when no will exists, but this only transfers title — it does not distribute personal property. (Tex. Est. Code §203.001)

What Happens to Minor Children

If you die without a will and leave minor children who also lose their other parent (or whose other parent is unfit), a court appoints a guardian of the person for each child — determining who raises them — and a guardian of the estate to manage their inheritance.

The guardian of the estate is supervised by the probate court and must file annual accountings until the child turns 18, at which point the inheritance distributes outright. A will with a testamentary trust could have deferred that distribution to age 25 or 30 and named a trustee you trusted.

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.