When a loved one passes away without leaving a valid will, the situation can feel overwhelming. Beyond the grief and emotional turmoil, families suddenly find themselves facing complex legal questions: Who inherits the house? How are bank accounts divided? What happens to personal property? These questions become even more complicated when you realize that Texas law — not your family's wishes — will determine the answers.
This situation is called "intestate succession," and it affects more families than you might think. According to various surveys, roughly 60% of Americans don't have a will. When these individuals pass away, their estates must be distributed according to state law, which may or may not align with what they would have wanted.
In this comprehensive guide, we'll break down Texas intestacy laws in plain English. You'll learn exactly how the state distributes assets when there's no will, understand the critical difference between community and separate property, and discover what options exist for families dealing with intestate estates. Whether you're currently facing this situation or simply want to understand what could happen to your own estate, this information is essential for every Texas resident. For a deeper understanding of what happens if you don't probate a will in Texas, including the four-year deadline and other consequences, see our related guide.
What Exactly Is Intestate Succession?
"Intestate" simply means dying without a valid will. When this happens, the deceased person is said to have died "intestate," and their estate goes through "intestate succession" — a legal process where the state determines who inherits based on predetermined rules.
Think of intestacy laws as the state's "default will" for everyone. Texas legislators created these rules to provide a fair and orderly way to distribute assets when someone hasn't made their own arrangements. The laws prioritize close family members — spouses, children, parents, and siblings — based on the assumption that most people would want their assets to go to their nearest relatives.
However, here's the critical point: intestacy laws are one-size-fits-all. They don't account for family dynamics, estrangements, special needs, or personal preferences. The state doesn't know that you wanted your best friend to have your car, or that you've been estranged from a sibling for twenty years, or that one child needs more financial support than another. Without a will, these nuances are ignored.
Important Distinction
Intestacy laws only apply to "probate assets" — property that would normally pass through a will. Assets with designated beneficiaries (like life insurance or retirement accounts) or property held in joint tenancy pass directly to the named beneficiary or surviving owner, regardless of intestacy laws.
The Foundation: Community Property vs. Separate Property
Before we can understand how Texas distributes an intestate estate, we need to understand a fundamental concept: Texas is a community property state. This means that property owned by married couples is classified into two categories, and each category is treated differently under intestacy laws.
What Is Community Property?
Community property includes most assets acquired by either spouse during the marriage. The key word is "during" — it doesn't matter whose name is on the account or who earned the money. If it was acquired while married, it's presumed to be community property.
Examples of Community Property:
- Wages and salaries earned during marriage
- Real estate purchased during marriage (even if only one spouse's name is on the deed)
- Vehicles bought during marriage
- Retirement benefits earned during marriage
- Business interests developed during marriage
- Investment returns on community property
What Is Separate Property?
Separate property belongs to one spouse alone and includes assets owned before marriage, gifts received by one spouse, inheritances, and personal injury settlements (except for lost wages).
Examples of Separate Property:
- Property owned before the marriage
- Gifts given specifically to one spouse
- Inheritances received by one spouse
- Personal injury awards (excluding lost wages)
- Property purchased with separate funds and kept separate
Why does this distinction matter? Because Texas intestacy laws treat community property and separate property very differently when determining who inherits. Understanding which category your assets fall into is essential for predicting how an intestate estate will be distributed.
Intestate Succession When There's a Surviving Spouse
The distribution rules become more complex when the deceased was married. Texas law considers both the type of property (community vs. separate) and whether the deceased had children — and critically, whether those children are also children of the surviving spouse.
Distribution of Community Property
Remember, each spouse already owns half of all community property. When one spouse dies intestate, we're only distributing their half. Here's how it works:
Scenario A: No Children or Descendants
The surviving spouse inherits the deceased spouse's entire half of community property. Combined with their own half, the surviving spouse now owns 100% of what was community property.
Scenario B: Children Who Are Also Children of the Surviving Spouse
The surviving spouse inherits the deceased spouse's entire half of community property. The children inherit nothing from community property (though they may inherit from separate property).
Scenario C: Children Who Are NOT Children of the Surviving Spouse (Blended Families)
This is where it gets complicated. The deceased spouse's half of community property goes entirely to their children — the surviving spouse receives nothing from the deceased's share. The surviving spouse keeps only their own half.
Critical Warning for Blended Families
If you're in a blended family situation — where one spouse has children from a previous relationship — intestacy can create serious problems. The surviving spouse may lose half of assets they considered "theirs" to stepchildren. This is one of the most compelling reasons to create a will, especially in second marriages.
Distribution of Separate Property
Separate property follows different rules, and the type of property matters:
| Family Situation | Separate Personal Property | Separate Real Property |
|---|---|---|
| No children or descendants | Spouse inherits all | Spouse inherits all |
| Children (all from this marriage) | Spouse: 1/3, Children: 2/3 | Spouse: Life estate in 1/3, Children: Full ownership of 2/3 (plus remainder of spouse's 1/3) |
| Children from previous relationship | Spouse: 1/3, Children: 2/3 | Spouse: Life estate in 1/3, Children: Full ownership of 2/3 (plus remainder) |
Notice the term "life estate" for real property. This means the surviving spouse can use and live in the property during their lifetime, but they don't own it outright. When they pass away, full ownership transfers to the children. This can create complications if the surviving spouse wants to sell the property — they'll need the children's cooperation.
Intestate Succession When There's No Surviving Spouse
When someone dies intestate without a surviving spouse, the distribution follows a specific order of priority. Texas law works down this list until it finds living relatives:
Children and Their Descendants
If the deceased had children, they inherit everything equally. If a child predeceased the parent but left their own children (the deceased's grandchildren), those grandchildren inherit their parent's share.
Parents
If there are no children or descendants, the estate goes to the deceased's parents. If both parents are living, they share equally. If only one parent survives, they receive half, and the other half goes to siblings.
Siblings and Their Descendants
If no parents survive, siblings inherit. If a sibling predeceased the person, their children (nieces and nephews) inherit that sibling's share.
Grandparents and Their Descendants
If no closer relatives exist, the estate is divided between the maternal and paternal sides, going to grandparents or their descendants (aunts, uncles, cousins).
Escheat to the State
If absolutely no relatives can be found after a diligent search, the estate "escheats" to the State of Texas. This is rare but does happen.
This hierarchy explains why intestacy can lead to unexpected outcomes. A deceased person might have wanted their estate to go to a close friend, a charity, or a more distant relative who was particularly close to them. Under intestacy, none of these wishes matter — the law follows its predetermined order regardless of personal relationships.
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Special Situations Under Texas Intestacy Laws
Texas intestacy laws include provisions for various special circumstances. Understanding these can help you anticipate how specific situations might be handled.
Adopted Children
Under Texas law, legally adopted children have the same inheritance rights as biological children. They can inherit from their adoptive parents (and their adoptive parents' relatives) just as if they were born into the family. However, adoption typically severs inheritance rights from biological parents, with some exceptions for stepparent adoptions.
Half-Siblings
Half-siblings (sharing one parent) are treated the same as full siblings under Texas intestacy laws. They inherit equally with full siblings when siblings are entitled to inherit.
Posthumous Children
A child conceived before but born after the parent's death (a posthumous child) has full inheritance rights, provided they're born within a reasonable time and can be proven to be the deceased's child.
Children Born Outside of Marriage
Children born outside of marriage can inherit from their mother automatically. To inherit from their father, paternity must be established — either through acknowledgment, court order, or genetic testing. Once paternity is established, the child has full inheritance rights.
Stepchildren
Stepchildren have no automatic inheritance rights under Texas intestacy laws. Unless legally adopted, a stepchild cannot inherit from a stepparent who dies without a will — even if they were raised by that stepparent from infancy. This is one of the most common situations where intestacy produces results contrary to what the deceased likely would have wanted.
Planning Tip
If you want stepchildren to inherit from you, you must create a will specifically naming them as beneficiaries. Intestacy laws will not provide for them, regardless of how close your relationship was.
The Texas Homestead Exception
Texas has strong homestead protections that affect how the family home is treated in intestate succession. Even when intestacy laws would otherwise give children ownership of real property, the surviving spouse has special rights to the homestead.
Specifically, the surviving spouse has the right to occupy the homestead for life, regardless of who technically owns it under intestacy laws. This "homestead right" cannot be defeated by the children's ownership interest. The surviving spouse can continue living in the home until they die, remarry, or voluntarily abandon the property.
However, this protection only applies to occupancy — not to selling the property. If the surviving spouse wants to sell the homestead and the children own an interest in it, all parties must agree to the sale. This can create difficult situations, especially if the surviving spouse needs to sell to access equity or move to assisted living. For families dealing with distressed property situations, these complications can make an already difficult situation even more challenging.
What Intestacy Means for Real Estate in El Paso
For many El Paso families, the family home is the most valuable asset in an estate. When someone dies intestate, real property often becomes the most complicated asset to handle. Here's why:
Multiple Owners
Intestacy often results in multiple heirs owning the property together as "tenants in common." Each heir owns a percentage, and all must agree to sell. If one heir refuses, the others may need to pursue a partition action in court.
Title Issues
Without probate, the deceased's name remains on the deed. Title companies won't insure the property, and most buyers won't purchase without clear title. This can leave property stuck in limbo for years.
Ongoing Costs
Property taxes, insurance, and maintenance don't stop just because ownership is unclear. Someone has to pay these costs, which can create conflict among heirs about who's responsible.
Deferred Maintenance
When ownership is disputed or unclear, properties often fall into disrepair. No one wants to invest in a property they might not ultimately own, leading to declining value.
These complications are why many families with intestate estates turn to cash land buyers and property investors who specialize in complicated title situations. At TREX RE LLC, we regularly work with families dealing with intestate estates, helping them navigate the legal complexities and find solutions that work for everyone involved.
The Probate Process for Intestate Estates
Even without a will, most intestate estates still need to go through probate to legally transfer assets. The process is similar to probating a will, with some key differences:
File Application for Administration
Instead of filing a will, an heir files an application asking the court to appoint an administrator for the estate.
Determine Heirship
The court must determine who the legal heirs are. This may require testimony from family members and others who knew the deceased.
Appoint Administrator
The court appoints an administrator (similar to an executor) to manage the estate. Texas law has a priority list for who can serve.
Post Bond (Usually)
Unlike executors named in wills (who can often serve without bond), administrators typically must post a bond to protect the estate.
Administer Estate
The administrator inventories assets, pays debts, and distributes property according to intestacy laws.
Intestate administration is often more expensive and time‑consuming than probating a will. The bond requirement, heirship determination, and potential for disputes among heirs all add complexity and cost. This is another reason why having a will is so important — it simplifies the process for your loved ones.
Alternatives to Full Intestate Administration
Texas offers some simplified procedures that may be available for smaller or less complicated intestate estates:
Small Estate Affidavit
For estates valued at $75,000 or less (excluding homestead and exempt property), heirs may be able to use a Small Estate Affidavit to collect assets without full administration.
Requirements: 30 days must pass after death, no pending administration, all heirs must sign, and debts must not exceed assets.
Affidavit of Heirship
For real property, an Affidavit of Heirship can help establish ownership without full probate. It's signed by someone familiar with the family (not an heir) and recorded in property records.
Note: This doesn't transfer title but can help title companies insure the property for sale.
Determination of Heirship
A court proceeding that officially determines who the heirs are and their respective shares. This creates a court order that can be used to transfer property.
Best for: Real property transfers when full administration isn't necessary.
Sell to Cash Buyer
For families who need to sell inherited property quickly, working with a cash buyer experienced with rental and inherited properties can often resolve complicated situations.
Advantage: Cash buyers can often work with title companies to find solutions that traditional buyers can't.
Frequently Asked Questions About Texas Intestacy Laws
Does Texas have an inheritance tax?
No, Texas does not have a state inheritance tax or estate tax. However, federal estate tax may apply to very large estates (over $12.92 million for individuals in 2023). Most families don't need to worry about estate taxes.
Can I disinherit my spouse under Texas law?
You cannot completely disinherit a spouse in Texas. Even with a will, your spouse has rights to their half of community property and homestead rights. However, you can control the distribution of your separate property through a will.
What if the deceased had debts?
Debts must be paid from the estate before heirs receive their inheritance. If debts exceed assets, heirs receive nothing, but they're generally not personally responsible for the deceased's debts (with some exceptions for secured debts like mortgages).
How long does intestate probate take?
Simple intestate estates might be resolved in 6-12 months. Complex estates with multiple heirs, disputes, or title issues can take years. Working with experienced professionals can help expedite the process.
Can unmarried partners inherit under intestacy?
No. Texas intestacy laws only recognize legal spouses and blood relatives. Unmarried partners, regardless of how long they've been together, have no inheritance rights under intestacy. A will is essential for unmarried couples who want to provide for each other.
What happens if heirs can't agree on what to do with property?
When heirs can't agree, any heir can file a "partition action" asking the court to divide the property or force a sale. This is expensive and time‑consuming, which is why many families prefer to work with cash buyers who can purchase apartment buildings and multi‑family properties or other inherited real estate to avoid court battles.
Protecting Your Family: The Case for Estate Planning
After reading about Texas intestacy laws, one thing should be clear: having a will gives you control that intestacy laws simply cannot provide. Here's what a will allows you to do that intestacy doesn't:
Creating a will doesn't have to be complicated or expensive. Many attorneys offer basic will packages at reasonable rates, and online services can help with simple situations. The peace of mind knowing your wishes will be honored is invaluable.
We're Here to Help Your Family
Dealing with an intestate estate can be overwhelming. If you've inherited property and need to sell — regardless of how complicated the situation is — we can help find a solution.
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