What Happens if You Die Without a Will in Texas?

Mar 2, 2022estate law, probate, Wills

Leslie Thomas, Attorney

As of 2021, only 46% of Americans have a will. If you want to ensure your family is taken care of when you’re gone, it’s crucial to have a legal will and estate plan in place. 

A legal will is an official document that names the executor of your estate and inheritance details, such as who should get your assets and how to manage your estate when you’re gone. However, without a will, you die intestate and state law determines who gets your estate.

Read more about how the Texas Estate Code handles this situation and why it is vital to have an estate plan in place.

Let’s talk about the importance of estate planning in Texas

A common question asked of those who don’t consider themselves wealthy is this: Do I really need a will? As you will see throughout this blog, estate planning is critical for everyone. If you have assets, you need a will. 

Even if you think you are not leaving many valuable possessions behind, an estate plan can help your family or inheritors avoid costly disputes after your death and ensure that your wishes are followed. 

If you’re considering foregoing estate planning because there is no estate tax in Texas, it’s crucial to understand what it means for your assets. 

Texas inheritance law says that dying with no will means the government has free reign to distribute your estate. It also means that they get to decide who is your executor, not you. This can also get confusing if your heirs live in multiple states or if you have property in multiple states and countries. This fact alone is the reason Texans should review and update their estate plan at least every 3 to 5 years.

Who Inherits When There is No Will In Texas?

When you die without a legal will, it is called dying intestate. This means that your entire estate goes into probate court, and the courts decide how to divide your assets. 

Dying intestate is common, but it also means that your property is then divided in a way that the courts see fit. It also means that the court defines what is community property between you and your spouse and what is separate personal property. 

Having a will gives you control over your assets and how they are distributed. 

How Do You Settle an Estate Without a Will In Texas?

An intestate estate is settled by going into probate court. Once someone is pronounced dead and it is realized that they do not have a will, their estate enters into the probate process. This can unfortunately take a long time, as long as a year or more to complete. 

The first major step in settling an estate is appointing an executor. Intestate succession usually grants a surviving spouse, child, or descent executor rights or legal trustee, but if they are not available or you want another person to inherit your estate, then this is where it becomes challenging. 

What Happens to Your Assets When You Die Without a Will in Texas?

Intestacy laws in Texas state that your assets will be distributed to your closest relatives. This usually means that the community property is divided equally between your surviving spouse and all of your descendants. 

Community property laws define this type of asset as anything acquired during the marriage with earnings from either spouse or both spouses together. This includes real estate, bank accounts, wages, stocks, bonds, and other investments.

Separate property (also known as individual property) will also go to the deceased closest relatives. Separate real property includes anything owned before marriage or acquired by gift or inheritance during the marriage. 

How Does Intestate Succession Law Distribute Property and Surviving Children

When the deceased is survived intestate, then Texas law determines how the estate and separate property are divided. (See this post regarding lady bird deeds.)

What Happens to Your Real Property When You Die Intestate?

No standard law determines how real property is divided among heirs in a death case. In the US, this can vary based on state laws and what types of relationships a deceased person had to whom they were connected. 

In Texas, the property would be split into decreasing levels of connection with the deceased based on such factors as who survived to inherit from them. The clearest example of how succession works is if there are two children who get into a car accident. If each child has descendants but no will, then the court will determine the legal trustee. 

There is also the law that a person must outlive you by 120 hours. So if one sibling died only 2 hours after the other, then their descendants would not receive any of the property. 

These types of tricky situations highlight the importance of having an estate plan in Texas.

How Does Texas Intestacy Law Handle Surviving Children If You Die Intestate?

If you have children, the court will determine who will be responsible for them. Your children’s inheritance will also be held in a trust until they reach the age of majority

As a parent, you’ll want an estate plan in place to control who will take care of your surviving children and their inheritance. This will make it easier for your children and surviving spouse to manage the estate and finances during a difficult time.

How Do I Make a Will in Texas?

The best way to make a will in Texas is to hire an attorney. Avoid online “solutions” such as will templates where you fill in the blanks. An experienced attorney can help you determine what type of will you need, or whether your situation is better suited to the various types of trusts. You want to ensure that your wishes are followed in the event of your death. You’ll also want to ensure a copy is kept on file with a law firm that will be around in the future; losing legal documents can pose a problem if you can’t easily recover a copy. 

Estate planning with an attorney who can give you proper legal advice can help ensure that your wishes are respected and heard. An experienced attorney will understand what you want in an estate plan and put your desires on paper, so it’s important to work closely with them as you’re formulating your plans for the future.

Meeting with one of our estate planning attorneys at the law office of Thomas-Walters, PLLC will help ensure that your wishes are fulfilled and your loved ones are well taken care of when you are gone. 


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