When an individual dies without a valid will, they are considered to have died “intestate.” Intestacy statutes are considered default statutes, and they govern the distribution of a decedent’s probate assets when no valid will exists. This means that some of your family members will receive your property, but the distribution of your estate and all of your property upon your death is distributed according to the law–and not according to your own personal wishes.
In Texas, intestacy statutes provide for which family members receive your property upon your death and how much property they receive. Heirs are those persons who take a decedent’s probate estate under intestacy statutes, and descendants (or “issue”) are those persons born in a direct biological line: children, grandchildren, and so-on.
Texas Intestacy Scheme: Descent and Distribution
Under Texas law, the distribution of a decedent’s probate estate upon his or her death is determined according to whether or not they are married, have a surviving spouse, and whether or not they have children or other descendants. Below, we will give a simplified breakdown of how a decedent’s property will be distributed after death based on their situation.
Married Person with No Children:
- Separate personal property: all to the surviving spouse.
- Separate real property: split between each surviving parent, sibling (if applicable), and the surviving spouse (the surviving spouse takes all of the decedent’s separate real property only if the decedent is survived by neither parent, no sibling, and no descendant of a sibling).
- Decedent’s share of community property: all to surviving spouse.
Married Person with Children:
- Separate personal property: ⅓ to surviving spouse, ⅔ to children who all take equally.
- Separate real property: surviving spouse takes a ⅓ life estate in the property, children all take equally (subject to the surviving spouse’s ⅓ life estate).
- Decedent’s share of community property:
- All to the surviving spouse if all children and descendants are also children or descendants of the surviving spouse.
- All to children, who take equally, if there are children and descendants from outside of the existing marriage as of the date of decedent’s death.
Unmarried Person with No Child or Descendant(s):
- All property passes depending on who survived the decedent (e.g., mother, father, or siblings).
- If there are no surviving parents, siblings, or descendants of siblings, then the decedent’s estate will be divided into two halves: ½ will pass to any relatives on your mother’s side, and the other ½ will pass to any surviving relatives on your father’s side.
Finally, if an unmarried person dies without any surviving heirs on either side of their family, then the decedent’s estate will escheat–meaning that the estate will pass in entirety to the State of Texas. Although this is extremely rare, it does happen, and it is important to understand the intestacy scheme in your home state.
In order to prevent your estate from being distributed according to the laws of intestacy, rather than your personal wishes, it is important to have a valid will in place. Consult an experienced Estate Planning attorney today to get a headstart on your future-needs planning, and ensure that your assets pass to the people that you choose.