SMITH & GARG, LLC

What Happens When You Die Without A Will

FAQ's

Dying without a will (dying intestate) in Texas gives the probate court the power to dictate to whom your property goes based upon statutory provision regardless of what your wishes are. Below are the different ways your property will be distributed in the event you fail to draft a valid will.

Married Person With Children

The decedent’s separate real property will pass to his or her children, subject to surviving spouse’s life estate in 1/3 of the property. After surviving spouse dies, decedent’s children own the real property. The decedent’s separate personal property will pass 2/3 to the children, and 1/3 to the surviving spouse.

The decedent’s community property will pass 100% to his or her surviving spouse, as long as all of his/her children are born out of that marriage (i.e., he/she has no children from a previous marriage or relationship):

If the decedent had children from a previous marriage or relationship, his/her community property will pass ½ to the children from the prior marriage or relationship, and ½ to the surviving spouse:

Married Person With No Children

The decedent’s community real and personal property will pass 100% to his/her surviving spouse:

The decedent’s separate personal property will pass 100% to his/her surviving spouse:

If both of the decedent’s parents survive, his/her separate real property will pass ½ to his/her surviving spouse and ½ to his/her parents (one-fourth to each parent):

If only one of the decedent’s parents survives, his/her separate real property will pass ½ to his/her surviving spouse, ¼ to the surviving parent, and ¼ to his/her surviving siblings:

If the decedent left no surviving siblings, his/her separate real property will pass ½ to his/her surviving spouse and ½ to his/her surviving parent(s):

If the decedent left surviving siblings but no surviving parent(s), his/her separate real property will pass ½ to his/her surviving spouse and ½ to his/her surviving siblings:

If the decedent left no surviving parents nor siblings, his/her separate real property will pass 100% to his/her surviving spouse:

Single Person With Children

The decedent’s real and personal property will pass 100% to his/her children.

Single Person With No Children

The decedent’s entire estate will pass 100% to his/her parents (1/2 to each parent).

If the decedent only left only one parent surviving, his/her estate will pass ½ to the surviving parent and ½ to his/her siblings.

If the decedent left only one parent surviving but no siblings surviving, his/her estate will pass 100% to the surviving parent.  

If the decedent left no parent surviving, his/her estate will pass 100% to his/her siblings.

If the decedent left no parents or siblings surviving, his/her estate will be divided into two halves, with one half passing to his/her maternal kindred and the other half passing to paternal kindred. Within each half, the maternal grandparents and paternal grandparents will be entitled to ½ each (or ¼ of the total estate). If no grandparents survive the decedent, his/her estate will pass down through the chain of maternal and paternal descendants until a living heir is found.

In any event, if the decedent left no discernable surviving heirs, his/her estate will escheat to the state of Texas.