What Happens If Someone Dies Without a Will in Texas?

Someone dies.

The family checks the desk. The filing cabinet. The safe. Maybe an old attorney's office.

There is no will.

Now what?

One of the first misconceptions families sometimes have is that dying without a will means the State of Texas automatically takes everything.

That is generally not what happens.

Instead, Texas has its own rules for deciding who inherits when someone dies without a valid will.

Dying Without a Will Is Called Dying Intestate

When a person dies without a valid will, they are said to have died intestate.

Instead of the person deciding who receives probate property through a will, Texas law supplies the default rules.

Those rules are called the laws of descent and distribution.

Texas law defines an "heir" as someone entitled under those laws to part of the estate of a person who dies intestate, including a surviving spouse where applicable.

The important point is this:

No will does not mean no rules.

It means Texas's rules replace the instructions the person could have left in a will.

Start With What the Person Actually Owned

Before determining who receives an estate, the family needs to understand what is in it.

That can include:

• A house
• Land
• Bank accounts
• Vehicles
• Investments
• Business interests
• Tools
• Jewelry
• Firearms
• Personal belongings
• Other property owned at death

Ownership matters.

So does how the property was titled.

Not Everything Necessarily Passes Through Probate

This is another important distinction.

Some property may pass outside a will or intestacy depending on how it is owned or whether a valid beneficiary arrangement exists.

Examples can include certain life insurance proceeds, retirement accounts with beneficiary designations, payable-on-death accounts, survivorship property, or assets properly held in a trust.

That means the "estate" for probate purposes may not include every asset the person used or benefited from during life.

Who Gets the Property?

That depends on the family.

Was the person married?

Did they have children?

Were all of those children also children of the surviving spouse?

Was the property community property or separate property?

Are the parents still living?

Are there siblings?

Texas intestacy rules can produce substantially different results depending on the answers.

For example, Texas Estates Code Section 201.003 provides that when an intestate decedent leaves a surviving spouse, the deceased spouse's community property generally passes to that surviving spouse if there are no descendants, or if all surviving descendants are also descendants of the surviving spouse. Different rules apply when the decedent has descendants who are not descendants of the surviving spouse.

That is one reason the statement "the spouse gets everything" can be wrong.

What Happens to the House?

The house is often where families become confused.

Someone may have lived there for 30 years and still not know exactly how title and inheritance interact after a death.

The answer can depend on whether the property was community or separate property, who survives the decedent, and how title was held.

Do not assume that living in the house means one person automatically owns the entire property after the death.

Who Handles the Estate If There Is No Executor?

A will often nominates an executor.

Without a will, there is no person nominated by the decedent in that document.

When estate administration is necessary, a court may appoint an administrator or other appropriate personal representative under Texas law.

That person can then have authority to deal with estate matters subject to the applicable probate procedure.

The Family May Need to Establish Who the Heirs Are

When there is no will, establishing the family tree can become a legal issue.

Who was married to whom?

Were there prior marriages?

How many children were there?

Did a child die before the parent?

Did that child have children?

Are there adopted children?

Those are not simply family-history questions. They can determine ownership.

What If the Family Finds a Handwritten Note?

Do not throw it away.

Texas recognizes holographic wills under certain circumstances.

A handwritten document that does not look like a formal attorney-drafted will may still require legal review before the family assumes there is no will.

Preserve the original exactly as you found it.

Do not write on it, staple things to it, or try to "fix" it.

Gather the Estate Documents

If someone dies without an obvious will, start gathering:

• Death certificate
• Deeds
• Bank statements
• Vehicle titles
• Investment statements
• Insurance information
• Beneficiary designations
• Marriage and divorce records
• Business records
• Debt information
• Family information

The goal is to build a reliable picture of both the property and the family.

Talk to McMillan & Black About an Intestate Estate

Probating an estate without a will can be more complicated than families expect, particularly when heirship, real property, blended families, or disagreements are involved.

McMillan & Black assists Texas families with probate, intestate estates, heirship issues, and related probate disputes.

If a family member died without a will, contact the firm to discuss what property exists, who may inherit, and what probate process may be appropriate.

Sources

Texas Estates Code Chapter 201 — Descent and Distribution 

 Texas Estates Code Definitions, Including "Heir"