Texas Distribution of Property Without
a Will (Intestate Distribution)
by Peter Bradie
Peter Bradie is a name partner in the firm of Bradie, Bradie, & Bradie. He was admitted to the Texas Bar in 1978 and is admitted to practice before the U.S. District Court, Southern District of Texas. His education includes a B.S. in Mechanical Engineering from Fairleigh Dickinson University and Juris Doctor from South Texas College of Law. He was a recipient of the American Jurisprudence Award, Criminal Law in 1976 and the E.E. Townes Award in 1978. He is a member of the Northwest Bar Association (past president), the State Bar of Texas, The Association of Trial Lawyers of America, and the Commercial Law League of America. His firm has a web site at www.bradie-law.com.
If you die without a will ("intestate"), in Texas, the state will 'write one for you'. That is known as the laws of descent and distribution.
Contrary to popular belief, your estate will not go to the state ("escheat") unless no heirs can be found. Your estate will be responsible for the costs of searching for your heirs, and for the legal costs of an 'attorney ad litem' whom the court will appoint to represent unknown and missing heirs.
More likely than not, the court will also appoint an Administrator to handle your estate, and the administration will be a dependent administration; i.e. the Administrator is subject to court supervision in the administration of your estate. The Administrator must apply to the court for every action the Administrator wishes to take, the court may grant permission after a hearing, then the Administrator has to report back to the court on the actions taken, and the court then may approve the actions after a hearing. All those costs of administration are borne by your estate before any distribution is made.
Distribution is based upon marital status, presence or absence of children, whether the children are of the decedent and of the marriage, if parents or siblings survive, and the type of property in the estate. The following chart shows intestate distribution in Texas.
Table of Intestate Distribution ©Note: Adopted children are considered as natural-born, and sometimes may inherit from their natural parents as well as their adoptive parents. Children of the surviving spouse, but not the decedent's natural children, are not heirs at law unless adopted by the decedent. Only children of the decedent, but not the surviving spouse, are "children not of the marriage".
| Marital Status/Children | Property Type | Separate Property | Community Property |
| Married, children not of the marriage |
Real Property |
1/3 to spouse for life,
remainder to children. 2/3 equally to children subject to life estate. |
1/2 owned by spouse 1/2 equally to children |
| Personal Property |
1/3 to spouse 2/3 equally to children |
1/2 owned by spouse 1/2 equally to children |
|
| Married, no children, parents surviving |
Real Property | 1/2 to spouse 1/2 equally to parents |
All to surviving spouse |
| Personal Property | All to surviving spouse | All to surviving spouse | |
| Unmarried, no children, parents or siblings surviving | Real Property and Personal Property |
1/2 to father, 1/2 to mother. Parent's portion to siblings, or sibling's descendents, if parents deceased. | No community
property
|
| Widow or widower with children | Real Property and Personal Property |
Equally to children or their descendents | |
| Married, children of the marriage | Real Property and Personal Property |
All to surviving spouse | All to surviving spouse |
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