Dying Without an Estate Plan in Texas

Posted by Harvey L. CoxAug 23, 20210 Comments

If you die without an Estate Plan, Texas law has a formula that determines the distribution of your assets. That formula does not consider your wishes or unique circumstances.  The following summary explains how Texas law distributes your assets if you die without a plan.

Rules for a Single Person with No Children

If you are single and have no children, your property distribution will be as follows:

  1. If both of your parents are alive, your assets pass to them in equal shares. If only one parent is alive and you do not have siblings, your property goes to your living parent.
  1. If you have siblings, or descendants of your siblings, i.e., nieces and nephews, your surviving parent receives one-half of your estate. The other half splits between your siblings or their surviving children.
  1. If neither of your parents survives you, your entire estate passes to your siblings or their descendants.
  1. If neither of your parents is alive at your death and you have no surviving siblings or descendants of your siblings, one-half of your estate goes to your mother's side of the family, and one-half goes to your father's side of the family.
  1. If one side of your family has wholly died out, the entire estate passes to the surviving side.
  1. If you die without any surviving heir, a rare occurrence, your estate passes to the State of Texas.

Rules for a Single Person with Children

If you are single and have children, all your property passes to your children equally.  If some of your children predecease you and leave children or grandchildren of their own, the younger generation is entitled to the portion of your estate that the older generation would have received had they survived.

Rules for a Married Person

Most people assume that if you are married and die without a will, your surviving spouse inherits your entire estate. But that is not always true. The question of property distribution for married persons depends on whether the estate is composed primarily of community property or separate property.

Community Property

In Texas, the presumption is that all property acquired during the marriage is community property. If your spouse and children survive you, the distribution of your community property is as follows:

  1. If all your children are also the children of your surviving spouse, your surviving spouse inherits all your community property.
  1. If all your children are not also children of your surviving spouse, your one-half interest in the community estate passes to your children, with your spouse keeping only one-half interest.

Your surviving spouse inherits all of your community property if you do not have any children.

Separate Property

Separate property is the property you owned before marriage and property you received by gift or inheritance during the marriage.  If you have any separate property at your death, the distribution of that property is as follows:

  1. If you have a surviving spouse and children, your spouse gets one-third of your separate personal property and a life estate interest to one-third of your separate real property. A life estate entitles your spouse to use the property until their death. The rest of your separate property is inherited outright by your surviving children.
  1. If you are married and have no children or other descendants, your surviving spouse is entitled to all your separate personal property. If, however, you have surviving parents and siblings, your surviving spouse is entitled to only half of your separate real estate, with the other going to your parents, siblings, or descendants of siblings.

The distribution of assets, as outlined above, only applies if you die without an Estate Plan.  If you leave a Will, the probate court follows the distribution you specify in the will.  If you leave a Trust, your Successor Trustee follows the distribution you specify in the Trust.  The key is to make sure you have a plan.  At a minimum, you should have a Will.  The better option is to have a Trust.

I want to repeat this point for emphasis because I see so many people who do nothing to plan for death.  If you want to make sure your assets go to the people you choose, you must create a plan.

Resources for More Information  

I have written two books you may find helpful in preparing your Estate Plan. You'll find them here.  Or, if you want physical copies of the books, call me at (254) 233-7300, and my staff will get copies to you in the mail.  

You can also register for my Estate Planning webinar here. I promise you I'll give you answers you won't find on Legal Zoom or Rocket Lawyer.