What Happens To My Property If I Die Without a Will in Texas?

Intestate Succession is the law if you die without a will in Texas.

Will1As with many legal questions, the short answer is ‘It depends.’

In this case, it depends whether the property is considered separate property or community property. Then it depends on whether all of your children are also the children of your surviving spouse.  Most people simply assume if they die without a will in Texas, their spouse will inherit everything. That is not always the case.

Property acquired during a marriage is generally considered community property. Property acquired prior to a marriage or with funds not considered community property and never used for the benefit of the marriage is generally considered separate property.  Many a legal battle has been waged over whether property should be characterized as community property or separate property, both in an estate context and a divorce context.

If you die without a will and all of your children are also the children of your surviving spouse, then you spouse will inherit all of your community property.  The same is true if you have no children – the surviving spouse gets all of your community property.

If you die without a will and you have a child or children who are not the children of your surviving spouse, then your one-half interest in your community property passes directly to your children. Your surviving spouse retains the one-half interest he or she had prior to your death.

Here’s where it gets tricky. If you have separate property and are survived by a spouse and children, then the surviving spouse gets one-third of your separate personal property.  Personal property is everything except real property, or real estate. The rest of the personal property goes to your children.  As for your real property, your surviving spouse is entitled to a life estate only and the remainder passes directly to your children.

What if you have no children or other descendants? Then your surviving spouse would get all of your separate personal property but only half of your separate real property.  The other half of your separate real property would pass to your parents, siblings, or nieces and nephews under the laws of intestacy.

It’s easy to see why the issue in so many cases is whether certain property should be characterized as community property or separate property.

It cannot be stressed enough: If property distribution other than what is described above is important to you, don’t wait another day to start the process of drafting your will.

An experienced Bryan-College Station, Texas estate planning attorney can provide the information and assistance you need to prepare a comprehensive estate plan today. Call the Peterson Law Group to make an appointment at 979-703-7014 or fill out our online contact form.

About Chris Peterson

Chris Peterson is an attorney and the owner and founder of Peterson Law Group, a Texas law firm with offices in Bryan/College Station and Kingwood. He mainly practices in the areas of Estate Planning and Business Planning. Chris is also a Certified Estate Planner. Besides his law practice, Chris is a serial entrepreneur and community volunteer. He is known for his cutting edge law practice that utilizes technology to deliver efficient, excellent work.