What happens to my property if I die without a will in Texas?
In order to answer this question, we must first determine whether the deceased's property is separate or community. (See definitions.)
If the deceased is not married, the property is separate and will be governed by Section 38 of the Texas Probate Code. In addition, as a general rule, other separate property will include (1) gifts/inheritance; (2) property acquired in another state during marriage which is not community property under the laws of that state; (3) all property owned prior to marriage. (See definition of separate property.)
Possibility One - Both a spouse and a child or children survive the deceased:
As to personal property, the spouse gets one-third and the remaining two-thirds go to the children.
As to real property, the land goes to the children equally, subject to a life estate in one-third of the land by the surviving spouse.
Possibility Two - Deceased is survived by spouse, but no children:
All personal property to spouse.
As to real property, the surviving spouse gets one-half; the deceased's father gets one-fourth; and the deceased's mother gets one-fourth.
If one or more of the parents predeceases the decedent, then the portion that would have gone to that parent goes to the deceased's brothers and sisters and their descendants. If one parent survives, but no brothers or sisters survive, then one-half of the land will go to the surviving parent.
It is only if there are no surviving brothers, sisters or parents that the spouse inherits all of the land.
Possibility Three - If the deceased does not have a surviving spouse, but does have surviving children, then both the personal and real property are divided equally among the children.
Possibility Four - If the deceased has no surviving spouse and no surviving children:
If both parents are living, then the estates goes one-half of everything to each surviving parent.
If only one parent survives, then one-half of the estate will go to that parent, and the other one-half will be divided equally among siblings. If there are no siblings, then the surviving parent gets everything.
If no parent survives, but there are siblings, the estate is divided equally among the surviving siblings.
If no parent and no siblings survive, the law will still attempt to avoid escheat, but it is too complex to cover in this writing.
If the property is community property (see definitions), it will pass in accordance with Section 45 of the Texas Probate Code.
Possibility One - If decedent is survived by a spouse and is not survived by children or grandchildren, all community property passes to the surviving spouse.
Possibility Two - Decedent is survived by a spouse and children or grandchildren where all such children or grandchildren are also the children or grandchildren of the surviving spouse, all community property passes to the surviving spouse.
Possibility Three - Decedent is survived by a spouse and children or grandchildren, but the children or grandchildren are not also the children or grandchildren of the surviving spouse, then spouse retains one-half of the deceased spouse's community estate and the other one-half goes to the children/grandchildren of the deceased.