When a Texas resident dies without having made a last will and testament, they are automatically entered into the state's intestacy probate process. Each state controls the functioning of this process through the intestacy succession laws found in that state's probate tax code. The Texas Probate Code, Title 2, Subtitle E, Chapter 201 is the law that dictates the dispersal of the deceased person's probate estate.
During a probate process, the beneficiaries must demonstrate to a court that the distribution of property is honest and fair. Any property owned by the decedent at their death as well as bills or debts they owed become part of the probate. The debt will be subtracted from the total amount of properties and the remaining balance is separated according to law. Depending on the circumstances, the cost of court costs in a probate case can vary from just a few hundred dollars to over a thousand dollars. It can take up to two years for the entire process to complete.
When the Deceased Is Survived
Under the Texas intestacy laws, if the deceased person is survived by a spouse or children, grandchildren, great-grandchildren, or parents, and siblings, property is divided based on a decreasing level of connection to the decedent. You will see the term descendant frequently in these laws. Descendants are children, grandchildren, and great-grandchildren.
Survived by Spouse and Biological Children
In this case, the surviving spouse will inherit all of the deceased spouse's community property plus one-third of the deceased spouse's separate personal property and the right to use the real estate for life; and the deceased spouse's children will inherit the balance, per stirpes.
Survived by a Spouse and Non-Biological Children
In this case, the surviving spouse will inherit one-third of the deceased spouse's separate personal property and the right to use the real estate for life, and the deceased spouse's children inherit everything else, including the deceased spouse's one-half interest in the community property, per stirpes.
Survived by a Spouse and No Descendants or Parents
In this case, the surviving spouse will inherit the deceased spouse's entire probate estate.
Survived by a Spouse and Parent or Parents and No Descendants
In this case, the surviving spouse will inherit all of the deceased spouse's community property, all of the deceased spouse's separate personal property, and the right to use one-half of the separate real estate for life; the deceased spouse's parents will inherit the balance.
Survived by a Spouse and Siblings and No Parents or Descendants
In this case, the surviving spouse will inherit all of the deceased spouse's community property, all of the deceased spouse's separate personal property, and the right to use one-half of the separate real estate for life; the siblings will inherit the balance.
Survived by Descendants and No Spouse
In this case, the deceased person's descendants will inherit the entire probate estate, per stirpes.
No Surviving Spouse or Close Relative
If the deceased person dies without a will and is not survived by a spouse, descendants, parents, or siblings, then the deceased person's property will pass to nieces and nephews, if any; otherwise to grandparents, aunts or uncles, great aunts or uncles, cousins of any degree; or the children, parents, or siblings of a predeceased spouse. In the unlikely circumstance that the deceased person is not survived by any family members as described above, then the entire probate estate will escheat to the state of Texas.
What You Will Inherit From a Texas Intestate Estate
What will you inherit if your relative dies without leaving a last will and testament and the relative was a resident of Texas or owned real estate located in Texas? Even if you determine based on the information above that you are entitled to an intestate share of your relative's estate, you may very well not inherit anything.
This is because your relative may have left all non-probate property or the debts your relative owed at the time of death may exceed the value of the probate estate, which will make the estate insolvent. If you are not sure of your legal rights as an intestate heir in Texas, then consult with a Texas probate attorney to be sure.
The information contained in this article is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.