Texas Heirship

The State of Texas has put default laws in place that determine how a deceased individual’s property should be distributed in the event he or she dies without leaving a valid Last Will and Testament. When no Will is available to be offered to probate, the court will determine who should take a decedent’s property by means of these default heirship laws through a statutory scheme called intestate succession. Whether the decedent’s heirs inherit by means of an Affidavit of Heirship, an Heirship Proceeding, or a Small Estate Affidavit, it is the Texas intestacy laws that determine who should “take” from the estate.

Since Texas is a community property state, many people believe that a decedent’s spouse will automatically inherit all of his or her property at death if he or she dies without leaving a Will. It is very important to note that this is not always the case. Whether the spouse will inherit a decedent’s entire estate depends on the type and classification of the property, as well as whether of the decedent’s children were born to both spouses. For example, if you had children born out of a previous relationship, then your surviving spouse will only get a ½ interest in the community real and personal property, with the children from the previous relationship getting the other ½. So in effect, the children from the previous relationship inherit your ½ of the community property, instead of it passing to the surviving spouse. Therefore it is very important to consider the differences in how intestate estates will be distributed when step-children are involved.

If an individual were to pass away leaving children but no spouse, his or her property will pass through the heirship laws to his or her children. If the decedent had no children but was married, again, his or her property will not automatically pass to the surviving spouse. Separate property (that property that was acquired before marriage, or during marriage by gift or inheritance) will be split between the surviving spouse and the decedent’s parents, if he or she left parents surviving. Even if only one parent survives, the spouse again doesn’t receive more than one-half of the separate property; the other half will be divided (i.e., 25% each) between the surviving parent and the decedent’s surviving siblings.

The intestacy laws of Texas take the property in the above manner through allocation to the decedent’s living heirs; only if no living heirs whatsoever survive the decedent will his or her property escheat to the state.
The scheme of descent and distribution can be complex and confusing to navigate when you are faced with determining who should inherit from a deceased loved one’s estate. We invite you to tour the “Dying Without A Will” section of this site for more information on Texas’ Heirship laws, including visual aids. Regardless of the type of probate or ancillary probate procedure that is appropriate for your circumstances, the experienced Probate attorneys at Garg & Associates are available to guide you in your questions regarding Texas’ heirship laws.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.