Intestacy Law Basics For Texans: Who Inherits What When There Is No Will?

When someone passes away without leaving a legal will behind, they are considered by the law to have died “intestate”. Because they did not leave valid wishes behind for what should happen to the remaining possessions they owned, the intestacy laws of the state they resided in will govern how their possessions are distributed. 

Texas’s intestacy law essentially gives most of the remaining possessions to the closest living relative. This sounds good in theory, but can cause major issues for blended families, estranged families, and even for “traditional” families who may not realize how the laws work. 

Here are some things you should know about intestacy law in Texas so you can better plan for the future:

Will all of a person’s possessions be governed by intestacy if there isn’t a will?

The short answer is no – the longer answer is that only assets that a person owns solely, with no co-owner or named beneficiary, are under the laws of intestate succession in Texas. This means that, most likely, assets like:

• Life insurance benefits
• 401k or IRA accounts/funds 
• Stocks or other securities

will pass directly and immediately to the named beneficiary on those assets, so long as those named beneficiaries are still alive.

(Side note – even if there was a legal will made, if the beneficiary designations on any assets do not match what is stated in the will, Texas state laws allow the beneficiary designations to override bequests in a will.)

However, assets like real estate (when there was not a transfer-on-death deed, and if the property was owned solely in one person’s name), or bank accounts, or vehicles (without a transfer-on-death registration) or heirloom possessions will be governed by intestacy laws. 

Which family members will inherit if Texas intestacy laws apply? 

Here is an easy-to-understand breakdown of intestacy laws in Texas and who gets what if there is no will and no co-owner/named beneficiary:

If someone passes away, and their spouse is still living…

• Did they have children with that spouse? If so, their spouse will inherit all of their “community property” (property acquired jointly during the marriage), as well as one-third of their separate personal property (property they acquired before the marriage OR gifts/inheritances they received during the marriage). The spouse will also have the right to use the shared primary home and one-third of the remaining real estate for the duration of their life. The children will inherit anything else (two-thirds of separate personal property and remaining real estate). 

• Did they have children from another relationship? If so, their spouse will only inherit one-half of their community property (but keeps one-third of their separate personal property, the right to use the shared primary home, and one-third of the remaining real estate for life). Their children inherit everything else (including one-half of the community property).

• Did they not have children at all, but have parents still living? Their spouse will inherit all of their community and separate property, as well as one-half of any separate real estate. Their parents will inherit anything else. 

• Did they not have children, and their parents have passed, but they have siblings? The same situation as above applies, but the siblings will inherit anything else equally. 

If someone passes away, and they don’t have a spouse (or their spouse is deceased)…

• Did they have children? If so, their children inherit everything.
• Did they have no children, but have parents still living? If so, their parents inherit everything.
• Did they have no children, but have siblings, and their parents have passed? If so, the siblings inherit everything equally.
• Did they have one surviving parent and siblings (but no children)? If so, their parent gets half of their estate, and the siblings share the other half equally. 

Texas intestacy laws for unique situations

The above scenarios are the most common, but intestacy laws cover a variety of family circumstances, including:

Half-siblings – Half-siblings (or any other half-relatives) will receive only half of the share that whole-blood relatives receive, unless a person passes and leaves behind only half-relatives, in which case they would inherit equally. 

Non-citizen relatives – Even if relatives are not legally in the United States, or have documentation but are still not citizens, they are entitled to inherit. 

No family – If someone dies without a will and doesn’t have any relatives at all (an extremely rare occurrence), their estate will go to the state, but again, this is very rare. 

Grandchildren – Grandchildren only inherit if their parents (the decedent’s children) are not alive to receive their inheritance. 

Foster children – Foster children are considered wards of the state, and will not automatically receive a share of an inheritance left behind. 

Adopted children – Children who are adopted have all the same rights as a natural/birth/biological child and will receive an intestate portion of the estate. 

Children given up for adoption – Interestingly (and unbeknownst to many Texans), children who are given up for adoption do inherit under Texas intestacy laws as the natural/birth/biological child of their parent, even if they have already been adopted by other parents. 

This list is not exhaustive, but is a brief overview just meant to explain how the laws generally work! 

The importance of estate planning – intestacy should be avoided if possible!

Intestacy laws are meant to be a backup if someone passes away without a will, but it’s always better if they don’t have to come into play. For one thing, any intestate property has to go through probate (a long, expensive, arduous court process) before it can be distributed to the closest living relatives. For another, intestacy laws don’t take into account the actual family relationships (an estranged sibling, a separation that never legally evolved into a divorce, etc.). 

That’s why it is in your best interests to create an estate plan now, while you still have time and mental capacity to do so! A trust and other estate planning tools can prevent probate and also ensure that your hard-earned assets pass directly to the people you want to inherit in the event of your death. 

Villegas Law Firm can help you create a customized estate plan that fits your family exactly. Call today to schedule a free consultation and learn more about your next steps!