What if I Die Without a Will in Texas?

What if you die without a Last Will and Testament in Texas?  This brief article mostly discusses what happens if you die in Texas and you had one or more previous marriages.  If you’re not familiar with Texas laws on “intestate succession,” you should know that the State of Texas has a default Will for you.  After you learn about intestate distribution, you may be thinking about contacting Texas estate planning attorney to consider the available options. To read more about other considerations for second marriages, see: Second Marriage and Estate Planning.


Multiple Marriages and Prior Children.

You should consider what will happen to your property if you die in Texas without a Last Will and Testament (dying “intestate”), you’ve had one or more previous marriages, and you have children outside of your latest marriage. “If you die without a Will in Texas, the state has a Will for you!”  In other words, if you die without a Will, the State has laws to say who your legal heirs are.

Many of our estate planning clients are shocked at what the State’s default laws say regarding who will inherit if a married person dies with no will and that person had children from a prior relationship.  Did you know that the state’s default laws say that the children would be the primary heirs to the estate, not the surviving spouse?

For example, let’s say a gentleman named William has a child when he’s just 17 years old.  He and the child’s mother give up the child for adoption.  A few years later, William meets the love of his life and they stay happily married for fifty years.  Then, William dies without a Will.  He reasoned that he didn’t need a Will in Texas because he assumed his surviving wife would get everything automatically anyway.  Can you guess who gets the bulk of William’s estate?  Under the default state laws, the child William had given up for adoption when he was a teenager would end up being the primary heir to William’s estate.


How is property distributed in Texas without a Last Will?

Once you get married, all the property acquired by the spouses is automatically considered Community Property.  Community Property is essentially property that is considered jointly owned by the married spouses.  Each spouse has a one-half interest in this community property. If you die without a Last Will and Testament, your surviving spouse only gets to keep her one-half interest of the community property. Your one-half interest goes to your children.

What about property that you acquired before the marriage, as an inheritance, or as a gift?  These sorts of property are considered Separate Property. For estate distribution purposes, Separate Property is split into two categories: (1) land (“real property”) and (2) everything else that isn’t land (“personal property”). Your surviving spouse gets to keep 1/3 of your separate property. The other 2/3 of your separate property goes to your children. For real property, whether it’s community property or separate property, your surviving spouse gets to use the property until your spouse dies (a “life estate interest”), but this is only an interest in 1/3 of your real property. Your remaining ownership interest in your real property goes to your children. And once your spouse dies, your children also get the 1/3 your spouse had.

Let’s sum that up:  If you die without a Will in Texas, the State has  Will for you.  The State’s default laws for heirs are confusing, plus the default laws probably would give your property to people you wouldn’t necessarily want to get your property.

How do you get around the State’s default laws for who your heirs would be?  Simple!  Get a Last Will and Testament or a trust.  These default laws only apply if you die without a Will.  If you die with a Will or trust, the State’s default laws simply wouldn’t apply to your estate.


Free Consultation

To ask a legal question or get legal help from Texas wills and Texas Wills and Probate lawyers Isaac Shutt and Peter Hall, use the online contact form to the right or call (214) 302-8197. If you prefer to meet at the law office in person, the attorneys will gladly offer a free consultation.

Visit www.ShuttLawFirm.com for more information on how to change your Texas Will after divorce, inheritance for ex-spouses, Texas intestate succession, what ex-spouses inherit if there is no Will, or related Wills and Probate Law questions, contact Texas Probate Attorneys Isaac Shutt and Peter Hall at ishutt@shuttlawfirm.com.

Shutt Law Firm’s office is conveniently located just north of Dallas, Texas, and just south of Plano. The law office is near the intersection of highway 75 and Campbell Road in Richardson, TX.


You can also call Mr. Shutt or Mr. Hall at (214) 302-8197 for more information on the topic discussed in this article or to discuss a different legal matter.
Please consider the Shutt Law Firm if you want to know more about probate in Texas, more about a Texas Last Will and Testament, or you need Richardson Probate Attorneys serving Dallas, Plano, Allen, McKinney, Garland, Addison, Denton, TX, Collin County, Tarrant County, or surrounding North Texas area.

DISCLAIMER: Nothing in this brief article constitutes legal advice. The information provided herein is merely provided in the spirit of education and is believed to be accurate as of the time it was originally prepared, and laws change. If you have a legal question, you should consult a lawyer for your specific legal situation. Further, nothing in this article shall be construed to have started an attorney-client relationship. No such relationship exists until both you and and an attorney at Shutt Law Firm sign an engagement letter.

Richardson, TX Attorneys for Texas Wills and Texas Probate

By Elizabeth Nanez