What happens when an individual dies without a will in Texas?

If a person without a will in Texas, the administration of the estate will be more costly and burdensome for the individual’s loved ones.  The State of Texas has developed defaults for the disbursement of assets upon death of an individual without a will.  Under Texas Law, the set of defaults is called “intestate succession.”  There’s an old lawyer saying:  “If you don’t have a Will, the State has one for you.”

Texas is a “community property state,” which means that most all property acquired during a married person’s marriage belongs to the community estate.  The community estate consists of property jointly owned by a married couple—it is basically a “pot” that all property acquired during marriage automatically goes into, of which each spouse has a ½ interest.  For example, a car purchased by one married individual during the marriage belongs to the community estate, not to the person individually.  Upon death, a married person’s will can only give away his ½ interest in the community estate as well as his separately owned property (which is mostly property that was acquired before marriage).

In the absence of a will, the default rule is that all of a married person’s property (his ½ of the community estate and his separate property) will simply go to the spouse.  If the person who died (called the “decedent”) had children from outside the marriage, then the default instead provides that his children will inherit his ½ of the community and his separate property.  Regardless, the spouse, by law, must be permitted to reside in the couple’s homestead for as long she wishes.

For unmarried individuals, the intestate succession rules lay out a tiered hierarchy for which group will inherit the decedent’s property.  The type of intestate succession in Texas is called “per capita with representation.”  Essentially, each person in the nearest generation to the decedent will inherit an equal share of the decedent’s estate.  If one of the people in that group dies before the decedent, then that person’s heirs will split that share.  For example, if Tom died unmarried with two siblings, Abel and Bob, each sibling will inherit ½ of Tom’s estate.  If Abel had died before Tom leaving behind two children, Cecil and Donna—then Bob would take his ½ share, and Cecil and Donna would split Abel’s share (taking ¼ each).

When an individual dies without a will, he or she gets no say in how the property will be dispersed.  Plus, without a will the estate administration will almost always be more expensive, longer, and more burdensome than if the individual had died with a will.  The lawyers’ fees and court costs may total double (or more) the costs of dying with a valid will.