Every year, many Texans pass away without leaving a will, leaving families to determine how assets will be allocated. In Texas, when a person dies without a will or other effective estate plan, the laws of intestacy govern distribution of the estate.
This guide breaks down what happens when someone dies without a will in Texas, practical considerations for filings and digital assets, and why creating a will now can save loved ones time, money, and stress.
What “Intestate” Means Under Texas Law
If a person dies without a will or other effective estate plan, that person has died intestate. Distribution then follows the Texas Estates Code, Chapter 201, through intestate succession. In a court proceeding to declare heirship, the probate court determines (1) who the heirs are and (2) what share each heir receives; when heirs are unknown or can’t be located, the court must appoint an attorney ad litem to protect their interests.
Instead of an executor (named in a will), the court appoints an administrator to handle debts, taxes, and distribution according to statute. The procedures for heirship and related nonjudicial tools (like affidavits of heirship) are set out in Chs. 202–203.
Note: Texas courts continue to expand e-filing and digital document handling, but the legal framework for who inherits has not changed—the controlling rules remain in Estates Code ch. 201.
How Texas Intestate Succession Works
Texas divides property into community property (what’s acquired during marriage) and separate property (what was owned before marriage or received during marriage by gift or inheritance). Who inherits depends on the family make-up and the character of the property.
Community Property
- All children are also the surviving spouse’s (or no descendants survive): The entire community estate passes to the surviving spouse.
- There are children/descendants from outside the marriage: The surviving spouse keeps their one-half of the community property; the decedent’s one-half passes to the decedent’s children/descendants.
Separate Property
- If descendants survive: The surviving spouse receives one-third of separate personal property and a life estate in one-third of separate real property; the children/descendants receive the remaining two-thirds of separate personal property and the remainder interest in the real property.
- If no descendants survive: The surviving spouse receives all separate personal property and one-half of separate real property, with the other half of the separate real property passing to the decedent’s parents/siblings as provided by §201.001.
Expectation check: Many families are surprised that a surviving spouse doesn’t automatically receive everything—especially when the decedent had children from a prior relationship or owned significant separate real property. A short consultation can clarify shares before anyone takes action.
If the Decedent Was Unmarried
If the decedent leaves no spouse, property descends first to children/descendants; if none, then to parents, siblings, and further kindred in the order stated by §201.001.
Family-Protection Overlays (Homestead, Exempt Property, Allowances)
Regardless of intestacy math, Texas homestead and exempt property protections can give the surviving spouse (and sometimes minor children) powerful rights—such as the exclusive right to occupy the homestead for life if statutory conditions are met. These protections operate alongside descent and distribution and can affect possession and timing.
What Happens When There Are No Close Relatives
If there is no spouse, no descendants, and no qualifying kindred under Chapter 201, the property escheats to the State of Texas—that is, title vests in the state in an escheat proceeding. Heirs who later prove a valid claim may be able to recover property per statute.
The Probate Process When There’s No Will
Many intestate estates do proceed through probate or an heirship proceeding, but some assets pass outside probate (POD/TOD accounts, beneficiary-designated life insurance/retirement, survivorship community property). In limited situations, heirs can use streamlined procedures:
- Proceeding to Declare Heirship (Ch. 202): Court determines heirs; attorney ad litem is appointed if heirs are unknown or cannot be located.
- Affidavit of Heirship (Ch. 203): A nonjudicial affidavit to establish family history for title purposes; helpful for real property but does not bar omitted heirs or creditors.
- Small Estate Affidavit (Ch. 205): Allows heirs to collect certain estates without appointing a personal representative if statutory criteria are met.
- Non-probate transfers: Assets with valid beneficiary designations often pass outside the estate entirely.
Typical administration steps include: filing the application (often coupled with heirship), appointment of an administrator, inventorying assets, paying debts/taxes, and distributing the remainder according to Chapter 201.
Digital Assets in 2025 (Not a Change to Who Inherits)
Texas applies the Texas Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) (Estates Code ch. 2001). With proper consent or court authority, fiduciaries can obtain disclosure of certain digital assets (e.g., email, social media, cloud storage, cryptocurrency) subject to the service provider’s procedures and any user-level directions (like an online tool naming a “legacy contact”). This is an access framework—it doesn’t change intestacy shares.
Common Problems in Texas Intestate Cases
- Disagreements among children from prior relationships.
- Confusion about community vs. separate classification.
- Missing accounts or unclear land title (where affidavits of heirship or a full heirship proceeding may be needed).
- Locating or verifying heirs (triggering an attorney ad litem and broader investigation).
Read Also: Do You Have To Pay Inheritance Taxes On An Estate in Texas?
Get Guidance on Texas Intestate Succession and Probate
At The Law Offices of Bailey & Galyen, we help Texas families navigate intestate estates, resolve inheritance disputes, and manage probate from start to finish. Whether a loved one died without a will or you want to create one to avoid confusion later, our attorneys can provide clarity and peace of mind.
For a confidential consultation, call Bailey & Galyen at 844-402-2992 or contact us online. Our phones are answered 24/7 — because your family’s future can’t wait. Se habla español.
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