When a Texas resident dies without a will, the Texas Estates Code decides who inherits, not the surviving family. Under the Estates Code, a surviving spouse does not automatically receive the entire estate. Community property generally passes in full to the surviving spouse unless the deceased spouse also had children from outside the marriage, in which case the spouse keeps their half and the other half goes to those children. Separate property splits between the spouse and the decedent’s children, parents, or siblings depending on who survives. Most intestate estates still pass through a probate or heirship proceeding before an heir can legally claim any property.
What “Intestate” Means Under Texas Law
If a person dies without a will or other effective estate plan, that person has died intestate. In such cases, the probate court must conduct a formal proceeding to declare heirship under Texas Estates Code Chapter 202 in order to transfer title to estate assets. In this proceeding, the court determines two critical elements:
- The identity of the lawful heirs, and
- The precise fractional share of the estate each heir is entitled to receive.
If any heirs are unknown, missing, or minor children, Texas Estates Code Section 202.009 requires the court to appoint an attorney ad litem to represent their legal interests. In addition, instead of an executor named in a will, the court appoints a court-supervised administrator to handle creditor claims, pay estate taxes, and distribute remaining assets according to statute.
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
- When all children are also the surviving spouse’s, or no descendants survive: The entire community estate passes to the surviving spouse, as set out in Section 201.003(b) of the Texas Estates Code.
- When there are children or 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 or descendants, under Section 201.003(c) of the Texas Estates Code.
Example: Maria and David were married 15 years and have two children together. Maria also has an adult daughter from a prior relationship. When Maria dies intestate, David keeps his one-half of the community property, and Maria’s one-half passes to all three of Maria’s children, not to David, because one of Maria’s children is not also David’s child.
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, as provided in Section 201.002(a) of the Texas Estates Code.
- 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 under Section 201.002(b) of the Texas Estates Code
Example: Robert dies intestate owning a house as separate property he inherited from his parents before marriage. He is survived by his wife and one child. His wife receives a one-third life estate in the house, meaning she can live in it or collect any income it generates for the rest of her life. Their child owns the remaining two-thirds interest outright now and inherits the final one-third interest when the wife’s life estate ends.
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, under Section 201.001(a) of the Texas Estates Code; if none, then to parents, siblings, and further kindred in the order stated by § 201.001.
Under Section 201.001(b), if one parent survives along with siblings, the surviving parent receives one-half of the estate and the siblings divide the other half. If both parents are deceased, siblings and their descendants inherit the entire estate under Section 201.001(c). If no parents, siblings, or their descendants survive, the estate divides equally between the decedent’s surviving paternal and maternal kin.
Example: James, who never married and has no children, dies owning a car and a bank account in his name only. His mother is still living, and he has one surviving sister. Under Section 201.001(b), James’s mother receives one-half of his estate, and his sister receives the other half.
How Homestead and Family-Protections Affect What Heirs Receive
Texas gives a surviving spouse and minor children a set of protections that sit on top of the rules deciding who inherits. These protections do not change who receives title to property. They change who can live in the home, what creditors can reach, and what the family can be paid while the estate is open.
The Homestead
Title to the homestead passes under the same rules as any other real property the decedent owned. What sets the homestead apart is what the heirs can do with it.
The home generally cannot be divided or sold out from under the surviving spouse. Under Texas Estates Code Section 102.005, the homestead may not be partitioned among the heirs for as long as the surviving spouse continues to use it as a homestead. The same protection applies while a guardian is authorized to occupy the home on behalf of the decedent’s minor children. A child who inherits a share of the house may therefore own part of it for years without being able to force a sale.
That protection depends on continued use. It lasts as long as the surviving spouse keeps the property as a homestead, rather than automatically for life.
The home is also largely protected from the estate’s debts. If the decedent left a surviving spouse or a minor child, Section 102.004 shields the homestead from most debts of the estate. The exceptions are narrow and include purchase-money debt, taxes, and certain liens for work done on the property.
These protections come from Article XVI, Section 52 of the Texas Constitution and Chapter 102 of the Texas Estates Code.
Exempt Property
The court also sets aside exempt property for the use and benefit of the surviving spouse and minor children. This is personal property — a vehicle, household furnishings, tools of a trade, and the other categories listed in Section 42.002(a) of the Texas Property Code. Property set aside this way is protected from most claims against the estate. Chapter 353 of the Texas Estates Code governs the set-aside.
The Family Allowance
A family allowance is a court-ordered payment out of the estate that supports the surviving spouse, minor children, and adult incapacitated children. The amount must be enough to maintain them for one year from the date of death, and the court may order it paid in a lump sum or in installments.
It is not automatic. Under Chapter 353, the court may not order an allowance for a surviving spouse who has separate property adequate for their own maintenance, or for minor children who have adequate property in their own right.
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 after seven years. That is, title vests in the state in an escheat proceeding under Chapter 71 of the Texas Property Code. Texas law presumes a person died without heirs if no lawful claim to the property has been asserted and no lawful act of ownership, such as paying taxes on it, has occurred for the seven years before the court makes its determination. 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 under Chapter 202 of the Texas Estates Code: The court determines who the heirs are; an attorney ad litem is appointed if heirs are unknown or cannot be located.
- Affidavit of Heirship under Chapter 203 of the Texas Estates Code: 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 under Chapter 205 of the Texas Estate Code: Allows heirs to collect certain estates without appointing a personal representative; currently available when the estate’s non-exempt assets total $75,000 or less and the assets exceed the debts.
- Non-probate transfers: Assets with valid beneficiary designations, such as retirement accounts and life insurance, typically pass outside the estate entirely.
Probate Steps at a Glance
- File the application for administration, often combined with a heirship proceeding, in the county where the decedent lived.
- Attend the hearing and have the court appoint an administrator once 30+ days have passed since the death. A shorter timeline applies to Small Estate Affidavits.
- Inventory and appraise estate assets.
- Pay valid debts, taxes, and administration expenses from the estate.
- Distribute what remains to the heirs according to Chapter 201.
Digital Assets and Intestate Succession
Texas applies the Texas Revised Uniform Fiduciary Access to Digital Assets Act, known as RUFADAA and codified at Chapter 2001 of the Texas Estates Code. 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.
What Assets Are Affected by Intestate Succession in Texas
Intestate succession generally governs only the probate estate — assets that do not already pass to someone else automatically, either by beneficiary designation or by the form of ownership. These typically include:
- Real estate titled solely in the decedent’s name
- Bank accounts held without a joint owner or a designated beneficiary
- Personal property such as vehicles, furniture, and valuables
Other assets pass outside intestate succession entirely, including:
- Life insurance with a named beneficiary
- Retirement accounts, such as IRAs and 401(k)s, with a designated beneficiary
- Jointly owned property with rights of survivorship
- Payable-on-death (POD) and transfer-on-death (TOD) accounts
The distinction matters because assets in the second group transfer directly to the named beneficiary or the surviving owner even when there is no will. They are not touched by the intestacy rules that divide the rest of the estate.
Why Intestate Succession Can Produce Unintended Results
Texas intestacy law provides a structured and predictable system for distributing an estate when there is no will. What it does not do is account for the decedent’s actual wishes or the realities of a particular family. Because the statutes define heirs strictly, the result can differ substantially from what the decedent would have chosen:
- An unmarried partner does not inherit, regardless of how long the relationship lasted.
- A stepchild does not inherit unless legally adopted.
- A surviving spouse may not receive the entire estate.
- Children from a prior relationship may be entitled to a share alongside the surviving spouse.
Blended families tend to feel these rules most acutely, because the statutory definitions of “spouse” and “child” may bear little resemblance to the relationships within the household. Where a decedent leaves both a surviving spouse and children who are not that spouse’s children, the estate may be divided rather than passing entirely to the spouse — an outcome families often do not anticipate.
A will, or a broader estate plan, is what allows these default rules to be replaced with the decedent’s own instructions. That is worth particular consideration for blended families and for couples who are not married.
Practical Challenges in an Intestate Estate
Without a will, distribution is dictated by statute rather than by the decedent’s instructions, and the administration itself is often more involved. Recurring issues include:
- Disputes among heirs, particularly where there are children from more than one relationship.
- Classifying property as community or separate. This determines how each asset is divided, and the classification is frequently unclear.
- Locating and verifying heirs. Where an heir is unknown or cannot be located, the court may appoint an attorney ad litem and require a broader investigation into the family history.
- Missing accounts or unclear title to land, which may call for an affidavit of heirship or a full judicial proceeding to declare heirship.
- Additional court involvement, because matters a will would have settled must instead be presented to and resolved by the court.
Together these issues can extend the timeline, increase the cost of administration, and add strain to an already difficult time for the family.
Talk to Bailey & Galyen About Texas Intestate Succession
Every family’s situation is different, and the default rules under the Texas Estates Code do not always match what a person would have wanted. Bailey & Galyen can review the family and property details in a specific case, explain how the applicable statutes apply, and help identify the right probate or heirship procedure to move an estate forward.
Call Bailey & Galyen to ask questions about a Texas intestate estate and learn what options may be available. The firm offers free consultations for estate planning and probate matters, and someone is available 24/7 to help you get started. You may also contact us online to request a consultation.
Frequently Asked Questions
1. How long does probate take without a will in Texas?
Probate without a will typically takes six months to over a year because the court must determine heirship under Chapter 202 before assets are distributed. Delays often occur if heirs cannot be located or if disputes arise regarding property classification.
2. Can intestate succession be contested?
Intestate succession proceedings can be challenged through formal court filings regarding heirship determination, asset characterization, or administrator appointment. Interested parties can file motions in the probate court to contest these issues.
3. Why is having a will important in Texas?
Having a valid Texas will allows you to direct who receives your estate, appoint an independent executor, and bypass the complex statutory heirship process required under Chapter 202 of the Texas Estates Code. It eliminates the default distribution rules imposed by Chapter 201.
4. When should I contact an estate planning attorney?
You should contact an estate planning attorney when creating an estate plan or immediately following the death of a family member who left no will. Early legal counsel helps prevent asset misallocation and ensures compliance with statutory notice and filing deadlines.
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