Intestate Distribution

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 most likely 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/or of the marriage, if parents or siblings survive, and the type of property in the estate.

Often, it does not come up with the same distribution that you would choose. For example, you may wind up owning your home and business with your in-laws, or with your spouse’s children from a prior marriage.

Having a properly drafted Will can save your estate a lot of money, make sure that your property goes to the people that you wish, and allows you to control who will manage your affairs.

The following chart shows intestate distribution in Texas.

Marital Status/Children Property Type Separate Property Community Property
Married, any 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. Parent’s portion to siblings, or sibling’s
descendents, if parents deceased.

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 only of the marriage Real Property 1/3 to spouse for life, remainder to children.

2/3 equally to children subject to life estate

All to surviving spouse
Personal Property 1/3 to spouse

2/3 equally to children