Dying Without a Will in Texas: What Happens?

Part 3
By Jason Brower

Question: “Is it true that the state gets everything if I die without a Will?”

The final scenario is where a person dies without a spouse and without children. This is the most complex scenario with five possible divisions, which are better explained in the following bullet points:

1. If both parents survive the decedent, then his estate passes to his father and mother, in equal portions.

2. If only one parent survives the deceased, then his estate will be divided into two equal portions, one of which will pass to the surviving parent, and the other passes to the siblings of the deceased.

3. However, if the decedent had no siblings, then all of the separate property would pass to the sole surviving parent.

4. Conversely, if neither parent is alive, but there are surviving siblings, then the whole estate passes to the siblings of the deceased.

5. Finally, if there is no parent nor sibling alive at the time of death of the decedent, the inheritance is divided into two equal parts. One part is passed to the paternal kindred, and the other is passed to the maternal kindred, in the following course:

• to the grandfather and grandmother in equal portions if both are living.

• If only one grandparent is living then the estate is split into two equal parts and one part goes to the surviving grandparent and the other goes to the descendant or descendants of such deceased grandparent.

• If there is no surviving grandparent, then the whole of the estate goes to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants, but never to the state.

Like the provisions related to the division of separate property, the Probate Code also lays out the division of the community property of someone who dies intestate. Fortunately, the distribution scheme for community property is easier because community property, by definition, only exists if a spouse survives the decedent. Only three scenarios exist when someone dies intestate leaving community property: 1) no children or descendants, 2) children who are all children of the decedent and the surviving spouse, and 3) children or descendants who are not all descendants of the surviving spouse.
1. If the deceased had no children, then the entire community estate passes to the surviving spouse.

2. If the deceased had children, and all of such children were also the children of the surviving spouse, then the entire community estate passes to the surviving spouse.

3. And finally, if the deceased had children or descendants other than those of the surviving spouse, then the surviving spouse retains her one-half (½) share of the community property, and the decedent’s one-half (½) share of the community property is divided equally between the children or descendants of the deceased.

So, as you can see, Texas law makes it very clear that the court will find an heir and that heir will inherit your estate and your estate will not be turned over to the state for any reason. However, to ensure that your estate is divided the way you see fit, and to avoid a costly administration, it is always the best bet to ensure that you have a valid Texas Will.