Texas Law: What if There Is No Will at the Time of Death?

By Tom Streissguth

Drawing up a will is recommended, no matter what your net worth is and where you live. In Texas and elsewhere, residents who pass away without a will are intestate and their affairs end up in the probate court system. The laws of the state decide who will serve as the administrator of the estate and who will receive any assets left over after the payment of debts and claims.

Community and Separate Property

If you leave a surviving spouse, Texas' intestate law handles community and separate property differently. Community property is everything acquired by either spouse during the marriage; separate property is what belonged to an individual spouse before the marriage. The law also distinguishes between personal and real property with real property generally defined as buildings and land.

Spouses and Descendants

If you die without a will and without a spouse, all of your property passes to your descendants, starting with your children. If you die with a surviving spouse only, all community and personal property passes to your spouse. If you die with a surviving spouse and descendants, then 100 percent of the community property -- real and personal -- passes to the surviving spouse.

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Separate Property

With a surviving spouse and no descendants, all separate personal property belonging to the decedent passes to the spouse. With a surviving spouse and descendants, the separate personal property is divided: one-third to the spouse and two-thirds to the descendants. If you have no surviving spouse or descendants, your separate personal property will pass to your father and mother in equal shares; if your father and mother predecease you, this property passes to your siblings.

Separate Real Property

Real property that is considered separate -- not community -- gives rise to an even more complex intestate succession rule in Texas. With a surviving spouse and descendants, real property goes two-thirds to the descendants and one-third to the spouse for use during her lifetime, after which the property then passes to the descendants. With a surviving spouse and no descendants, the spouse receives half and the parents (and successively, siblings and descendants of siblings) receive the other half. With no surviving spouse or descendants, real separate property goes one-half to your father and one-half to your mother (and successively, siblings and their descendants).

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