Texas Intestate Succession: Who Inherits When There's No Will

When someone dies in Texas without a valid will, the state steps in and decides who inherits. Texas intestate succession law — codified in the Texas Estates Code — distributes assets in a fixed order based on family relationships. The results are not always what the surviving family expects, particularly when a marriage involved children from a previous relationship.

Texas Is a Community Property State — and That Changes Everything

Before you can understand intestate succession in Texas, you need to understand the community property split.

In Texas, most property acquired during a marriage is community property — it belongs equally to both spouses, 50/50. Property owned before marriage, and property received as a gift or inheritance during the marriage, is separate property belonging to the individual spouse.

When someone dies without a will, the law treats community property and separate property very differently. This distinction has consequences that frequently catch surviving spouses off guard.

What a Surviving Spouse Inherits

From community property:

• If the deceased had no children, the surviving spouse inherits all community property.
• If the deceased had children only with the surviving spouse, the surviving spouse inherits all community property.
• If the deceased had children from a previous relationship (children who are not also children of the surviving spouse), the surviving spouse inherits only their own 50% of the community property. The deceased's 50% goes to those children.

That third scenario surprises many families. A surviving spouse who expects to own the house outright may suddenly co-own it with stepchildren.

From separate property:

• If there are no children, the surviving spouse inherits all separate personal property and half of the separate real property. The other half of real property goes to the deceased's parents or siblings.
• If there are children (whether shared or from a prior relationship), the surviving spouse inherits one-third of separate personal property and a life estate in one-third of separate real property. The rest goes to the children.

A "life estate" means the surviving spouse can use the property during their lifetime, but when they die, it passes to whoever the children are — not to the spouse's own heirs.

What Children Inherit

Children generally share equally in whatever portion of the estate passes to them under the rules above. If a child has already died but had their own children (the deceased's grandchildren), those grandchildren step into their parent's share — a concept called "per stirpes" distribution.

The law recognizes biological children and legally adopted children equally. Children conceived before but born after the death can also inherit. Stepchildren — children of the surviving spouse who were not adopted by the deceased — do not inherit from the deceased under intestate succession.

The Order of Heirs When There Is No Spouse or Children

If the deceased had no surviving spouse and no surviving children, Texas intestate succession works through the following order:

1. Parents — the deceased's parents share equally.
2. Siblings — if no parents survive, siblings (or their children, if a sibling is deceased) inherit.
3. More distant relatives — aunts, uncles, cousins, following a specific statutory pattern.
4. The state of Texas (escheat) — only if no eligible heirs can be found anywhere in the family tree.

Proving Who the Heirs Are

Without a will, someone must formally establish who the legal heirs are before any property can be transferred. In Texas, this typically requires one of two approaches:

Heirship Determination Proceeding: A court proceeding in which a probate judge formally declares the heirs based on testimony from witnesses. The court appoints an attorney ad litem to represent any unknown heirs. This is required before an administrator can be appointed and before most financial institutions will release assets.

Affidavit of Heirship: For real property, two disinterested witnesses who have known the deceased's family for many years can sign a sworn affidavit describing the family history and identifying the heirs. The affidavit is recorded in the county deed records. After five years on record without challenge, it is legally presumed to be accurate and can be used to establish title without a court proceeding.

Why "No Will" Creates Extra Work

Intestate estates in Texas cannot use several of the most efficient estate settlement tools. A Muniment of Title requires a valid will. An estate administrator (rather than an executor named in a will) has less initial flexibility and may require a more supervised court process.

The Small Estate Affidavit is available for intestate estates valued at $75,000 or less (excluding the homestead and exempt personal property), but it requires every heir to agree and sign, which becomes complicated when heirs are numerous or geographically scattered.

Most importantly, any heir who is a minor or incapacitated adult will trigger mandatory court supervision and the appointment of a guardian ad litem — adding significant cost and delay.

What to Do Now

If someone in Texas has died without a will, the first steps are:

1. Obtain certified death certificates (at least 8–10 copies — Texas DSHS charges $20 for the first, $3 for each additional ordered at the same time).
2. Identify all potential heirs and gather documentation of their relationship to the deceased.
3. Assess the estate's assets and debts to determine which settlement path is available.
4. File a probate application if administration is needed, or prepare an Affidavit of Heirship if the estate consists primarily of real property.

The Texas Estate Settlement Guide at /us/texas/estate-settlement/ covers the intestate administration process in detail, including the specific forms for heirship determination, the Small Estate Affidavit eligibility checklist, and the community property rules that affect which assets actually pass through the estate versus outside it.

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