As I mentioned in my blog piece, Why Do I Really Need A Will?, one of several reasons you should have a will in place is that if you die without a will in Texas then state law forces the courts to use very strict rules in deciding who gets which parts of the assets in your estate. And because of this your assets could very likely get distributed in ways that you would not have wanted. Below is a brief summary of what happens to your assets if you die intestate (without a will) in Texas.
If You Are Married
When you are married there are two types of assets – community property and separate property. Community property consists of all assets which are acquired by either spouse during marriage except for assets acquired by gift or inheritance. Separate property includes all assets owned before marriage along with any assets acquired by gift or inheritance during marriage.
If you have children and you had all of them with your current spouse, then your spouse will inherit all of your community property. Your children will inherit 2/3 of your separate property, and your spouse will get the other 1/3. However, any separate property that is real estate can only be inherited by your spouse as a life estate. This means that when your spouse dies later then that portion of the separate property that is real estate will automatically pass to your children.
If you have any children from a previous marriage then your children will get all 1/2 of the community property, and your spouse will get the other 1/2. Your separate property will get distributed the same as if you had had all of your children with your current spouse.
If you don’t have any children then your surviving spouse will inherit all of your community property. Your spouse will also get all of your separate property that is not real estate. For separate property that is real estate 1/2 will go to your spouse, and the other 1/2 will go equally to your parents. If either of your parents is already deceased then that parent’s share will go to any of your siblings if they survive you. If none of your parents, or siblings or descendants of your siblings survive you, then your spouse gets all of your separate property that is real estate.
If You Are Not Married (includes being widowed or divorced)
If you have children then they will inherit your property in equal shares. If any of your children has died before you then their share will go to their children. If any of your deceased children don’t have any children then their share will go to your surviving children.
If you don’t have any children then your parents will each inherit 1/2 of your property. If either of your parents has died before you then your siblings will inherit that parent’s share. If a sibling has died but has surviving children, then the surviving children get their parent’s (your deceased sibling’s) share. If only one of your parents is alive and you don’t have any siblings or nieces or nephews then your surviving parent gets everything. If you don’t have any surviving parents then everything goes to your siblings or their children.
If both of your parents have already died and none of their descendants are still alive, then 1/2 of your property will go to relatives on your mother’s side of the family and the other 1/2 will go to relatives on your father’s side of the family.
If it’s important to you that your assets get distributed differently than discussed above in any way, then you absolutely must have a will in place. And even if you are ok with your assets getting distributed like this, there still are other important reasons to have a will.