Probate in Texas: What Your Family Goes Through Without a Will

All wills will go through probate in the state of Texas, with a few exceptions and some nuances. If the deceased does not have a will, this is referred to as intestate succession. An estate will go through probate in Texas if there is no will with a few exceptions.  

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Those exceptions include the following.  

• Any life insurance policies that have a designation beneficiary.

• Any retirement accounts with a designated beneficiary.

• Any property that includes a transfer-on-death deed (TODD).

• Any bank accounts that have a payable-on-death designation.  

If none of these apply, an estate without a will does go through probate in Texas with the following exceptions. If the estate is valued at less than $75,000 (this does not include the homestead or any assets listed above and is the value after debts are cleared), you can file a Small Estate Affidavit to avoid probate proceedings.  

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A Small Estate Affidavit can be applied under the following conditions:.

• There is no will.

• No one has applied to administer the estate.

• There are enough assets to cover outstanding debts.  

• There is no real property outside of the homestead.

• All living heirs agree to the Small Estate Affidavit.

• The property that’s included in the estate, after debts, does not exceed $75,000.

Succession Laws Without a Will in Texas

Before determining who will inherit which assets, it is important to understand the difference between community property and separate property distinctions in Texas.  

• Community property: All assets acquired during the course of a marriage that do not have a designated beneficiary or transfer-on-death designation. This does not include gifts, any inheritance, or personal injury settlements.  

• Separate property: All assets that were acquired outside of a marriage, including any pre-existing property. Any gifts, inheritances, or personal injury settlements are also considered separate property. Other property can be deemed separate property if spouses are in agreement.

If none of the exceptions noted above apply, the estate will go through probate proceedings and the assets will be distributed according to the following lines of succession.  

• If you are married with no children, your spouse inherits everything.

• If you have children but no spouse, your children inherit everything. This includes

• Adopted children

• Children placed for adoption with another family

• Children born inside and outside of a marriage

• NOTE: Foster children and stepchildren typically do not inherit unless a legal adoption took place.

• If you have no spouse and no children, your parents inherit everything.

• If you have no spouse, no children and no parents, any living siblings inherit everything.  

• In the absence of those, the state will try to locate any other living relatives including grandparents, grandchildren, nieces, nephews, aunts, uncles and cousins.  

If you are married and there are surviving children, probate will allocate assets according to the following guidelines.  

• If you only have children with your surviving spouse, the following applies.

• Your spouse inherits all community property and 1/3 of separate property and the right to use any remaining real estate and shared home for life

• Your children inherit 2/3 of all separate property and any real estate

• If you have children that are not your spouse’s children, the following applies

• Your spouse inherits 1/2 of all community property, 1/3 of your separate property, and the right to use any remaining real estate and shared home for life

Want to learn more about wills and trusts? Compare what is included in a will and a trust.