Instate – No Will

If one dies with no will, it is called dying “intestate.”  Intestate succession in Texas is distributed according to statutory guidelines.  The court will not depart from these guidelines even if it is not the way in which you would like your estate to be divided.

The intestate succession laws are complex and often require the advice of an attorney to understand.  Here are some guidelines on distribution to help you understand the basics:

Single, no children:

Parents: Siblings: Distribution:
Both living n/a To Parents equally
One living Yes 1/2 to living parent; 1/2 to siblings or descendants of siblings
Deceased Yes All to siblings or siblings’ descendants
Deceased No or Deceased 1/2 to heirs of one parent; 1/2 to heirs of other parent

Special Circumstances:

  • If there are no surviving heirs on one side of the family, the other side of the family will share as described above
  • If there are no heirs, the estate will pass to the State of Texas

Single, with children:

Children: Distribution:
All living To Children equally
At least one deceased; At least one living; No Grandchildren To living children equally
Different Degrees of Relationship (e.g., one child living, one child deceased with children) Divided as if all children were living and descendants of any deceased children split the share of that child

Married, with Children:

All children are also children of a surviving spouse All community property goes to surviving spouse; 1/3 in separate personal property & life estate in 1/3 of separate real property to surviving spouse; All else to children
Children with someone other than surviving spouse 1/2 of community estate goes to spouse (theirs anyway); 1/2 of decedent’s interest in community estate passes to children; 1/3 in separate personal property & life estate in 1/3 of separate real property to spouse; All else to children
No children Spouse inherits all community property; Spouse inherits all separate personal property; Spouse inherits 1/2 of real property if there are surviving parents / siblings; Parents, siblings, descendants of siblings inherit other 1/2 interest in real property

Determining what is separate property versus community property can be a source of controversy amongst the heirs.  All property is presumed to be community property unless it is established as separate property.

Separate property is a spouse’s property that was:

  1. Property owned or claimed by the spouse before marriage;
  2. Property acquired by the spouse during marriage by gift, devise or descent; and
  3. The recovery from personal injuries sustained by the spouse during marriage, except for loss of earning capacity during the marriage.

The laws regarding separate versus community property can be very complex, and as you can see from the table above, can have a huge impact on the distribution of one’s estate that passes through the intestacy laws.

For a thorough understanding of how your estate will pass without a will, it would be advisable to have an attorney analyze your specific situation.  Or, you can prepare a valid will and determine for yourself how your estate will be distributed.