Dying Without a Will in Texas: Who Inherits, and What Happens Next

If someone dies in Texas without a will, the estate is intestate, and Texas Estates Code Chapter 201 (opens in a new tab) determines which heirs may inherit. The answer is not the same for every family. It depends on whether the person left a surviving spouse or children and on whether the property is community or separate property, and a child from another relationship can change the community-property result. Some assets, such as properly designated life insurance, retirement benefits, payable-on-death accounts and certain joint accounts, may pass outside probate (opens in a new tab). Depending on the estate, a family may use an affidavit of heirship, a small estate affidavit, an heirship proceeding or administration.

What happens first when someone dies without a will in Texas?

The first questions are practical ones. Who survives the person, what did the person own, and does a will or another document exist somewhere? TexasLawHelp's guide to estates (opens in a new tab) describes the options a family has, and its article on transferring a deceased person's property without going to court (opens in a new tab) explains the simpler routes. Sections 201.001 to 201.003 of the Estates Code then set out who the heirs are.

Who inherits when there is a surviving spouse and children?

Texas looks at community property and separate property separately.

For community property, Estates Code §201.003(b) (opens in a new tab) passes the community estate to the surviving spouse when no child or descendant of the decedent survives, or when every surviving child and descendant is also a child or descendant of the surviving spouse.

For separate property, §201.002(b) provides that when the decedent leaves children or descendants, the surviving spouse receives one-third of the separate personal property and a life estate in one-third of the separate real property. The children or descendants receive the other two-thirds of the personal property and the remaining interest in the real property.

These provisions describe the rule; they do not decide who owns a particular asset. Classifying the property and identifying every child comes before assuming that the spouse owns everything.

What if the children are from another relationship?

When the decedent leaves a child or descendant who is not also a child or descendant of the surviving spouse, §201.003(c) (opens in a new tab) sends the decedent's undivided one-half interest in the community estate to the decedent's children or descendants under §201.101. That is why a surviving spouse does not always inherit all of the community property.

What if there is a spouse but no child?

Community property passes to the surviving spouse under §201.003(b). Separate property is divided under §201.002(c) (opens in a new tab) and related subsections. The spouse receives all of the separate personal property, and the separate real property is divided between the spouse and the decedent's parents or siblings as the statute provides. If there is no surviving parent, sibling or descendant of a sibling, the spouse receives the entire estate.

What if there are children but no spouse?

Section 201.001(b) (opens in a new tab) provides that the estate descends to the decedent's children and the children's descendants.

What if there is no spouse and no children?

Sections 201.001(c) to (h) set the order that follows: the father and mother, a surviving parent, siblings and their descendants, grandparents, and then more remote paternal and maternal relatives. The statute also addresses half-blood relatives: under §201.057 (opens in a new tab), each half-blood collateral relative inherits half as much as a whole-blood relative, and if all of the collateral relatives are half-blood, each takes a whole portion.

How do community and separate property differ?

Family Code §3.001 (opens in a new tab) defines separate property as property owned before marriage, property acquired during marriage by gift, devise or descent, and certain personal-injury recoveries. Section 3.002 defines community property as property either spouse acquired during marriage that is not separate property. Section 3.003 presumes that property either spouse possesses during or at the end of the marriage is community property, and it takes clear and convincing evidence to show that something is separate.

Estates Code §201.003 governs the decedent's community interest at death, and §201.002 governs separate property when a spouse survives.

What happens to a house?

A house calls for its own review. The questions that matter are whether it is the family homestead, whether it is community or separate property, whether a spouse or minor children survived, whether liens or debts affect it, what the title records show, whether a transfer-on-death deed or another instrument exists, and whether an affidavit of heirship, a court heirship order, a small estate affidavit or administration is needed to move the title.

Under Estates Code §102.003 (opens in a new tab), a decedent's homestead descends and vests at death like other real property, under the laws of descent and distribution. Section 102.005 provides that when a surviving spouse or minor child exists, the homestead is generally not liable for estate debts, except for the listed exceptions.

For example, a house bought during the marriage is presumed to be community property under Family Code §§3.002 and 3.003. If the decedent leaves a child who is not also the spouse's child, §201.003(c) addresses the decedent's one-half community interest, so the statute does not support assuming that the spouse automatically receives the whole house. TexasLawHelp's page on inherited homes and homestead exemptions (opens in a new tab) adds practical context.

Do adopted children and stepchildren inherit?

Estates Code §201.054 (opens in a new tab) treats an adopted child as the child of the adoptive parent or parents for inheritance. The adopted child and the child's descendants inherit from and through the adoptive parent as if the child were a natural child. Sections 201.051 to 201.053 address inheritance through the biological or adopted mother and parent-child issues involving the father.

A stepchild who has not been adopted is not treated as the decedent's child merely because the decedent married the stepchild's parent. A stepchild may still receive property through another legal relationship or a beneficiary designation, but the step relationship alone does not create the parent-child relationship described in §201.054.

What happens to life insurance, retirement accounts and bank accounts?

Some assets never pass through the intestacy rules because a contract controls them.

• Life insurance and retirement accounts. Estates Code Chapter 111 (opens in a new tab) treats insurance companies, plan custodians and plan administrators as contracting third parties. A beneficiary designation or contract may control payment outside the probate estate, so the policy or account records are the place to look.
• Joint accounts. Section 111.001 allows a written agreement that a deceased joint owner's interest survives to the other owner. Section 113.151 (opens in a new tab) says survivorship cannot be inferred merely because an account is joint or labeled "JT TEN," "Joint Tenancy" or "joint."
• Payable-on-death accounts. The account agreement and the beneficiary designation control, subject to applicable law, and a properly designated account may not be part of the probate estate.
• Transfer-on-death deeds. Estates Code Chapter 114 (opens in a new tab) requires the deed to be recorded before death, and under §114.054 a will cannot revoke or supersede it.

Is probate required without a will?

Not always. Texas recognizes nonprobate transfers, affidavits of heirship, small estate affidavits, determinations of heirship and administration, and the right one depends on the property, the debts, the heirs and the statutory requirements.

• Small estate affidavit. Under Estates Code §205.001 (opens in a new tab), the distributees of an intestate estate may obtain the estate without a personal representative if 30 days have passed since the death, no petition for a personal representative is pending or has been granted, the estate assets (excluding homestead and exempt property) do not exceed $75,000, the assets exceed known liabilities under the statutory calculation, the affidavit is filed with the proper court clerk, the judge approves it, and the distributees comply with §205.004. TexasLawHelp's small estate affidavit toolkit (opens in a new tab) says the process generally needs the death certificate, the family history, asset and debt information, every distributee's signature and two disinterested witnesses.
• Affidavit of heirship. A sworn statement about family history and heirs, signed before a notary by a person who knows the family history and recorded in the county deed records where the real property sits, as TexasLawHelp explains (opens in a new tab). It does not itself transfer title.
• Determination of heirship. A court proceeding under Chapter 202 (opens in a new tab) that decides who the heirs are and their shares. TexasLawHelp says it is appropriate when property cannot be transferred by simpler procedures or when heirs are unknown or disputed.
• Administration. A court appoints a personal representative to manage estate property, claims, debts and distribution. Section 301.151 (opens in a new tab) requires proof that the decedent is dead, that the court has jurisdiction and venue, and that the other statutory requirements are met. Letters of administration may be needed when an institution or a property record requires court authority.

How is heirship established?

An application to determine heirship under §202.005 (opens in a new tab) states the decedent's death information, the heirs and their addresses, all children born to or adopted by the decedent, any marriages, will information and a general description of the property. Section 202.151 covers proof and testimony about the heirs and the family history. TexasLawHelp states that an applicant for a determination of heirship must be represented by a licensed attorney, and the court may appoint an attorney ad litem to investigate unknown or missing heirs.

Under §203.001 (opens in a new tab), a statement about the identity of heirs may be used in a proceeding to declare heirship or in a suit involving title to property, and §203.002 supplies a statutory form. TexasLawHelp's Spanish-language guidance says §203.001 gives a recorded affidavit evidentiary effect after it has been recorded for five years. An affidavit is a recorded sworn statement; a determination is a court order. They are not the same thing.

What should the family do first?

1. Secure the residence, vehicles, documents, devices and valuables while respecting existing ownership and occupancy rights.
2. Obtain certified death certificates through the funeral home, the local registrar or the Texas Department of State Health Services vital-records process.
3. Look for an original will, codicil, trust, beneficiary-designation records, safe-deposit-box information and prior attorney records.
4. Gather marriage records, birth records, adoption records, divorce decrees, death certificates for relatives who died earlier, deeds, mortgage records, account statements, insurance policies, retirement records and debt notices.
5. Sort the assets into probate assets and nonprobate assets.
6. Identify the county where the decedent lived and the county where any Texas real property sits.
7. Contact the county clerk or probate clerk for the filing location, local forms, current filing fees and hearing procedures.
8. Work out whether the estate may qualify for a small estate affidavit, an affidavit of heirship, an heirship proceeding or administration.
9. Keep creditor, tax, Medicaid, insurance and account notices.
10. Use a Texas probate attorney for a determination-of-heirship application or any other proceeding that requires representation.

Probate jurisdiction may sit with a statutory probate court, a county court or a county court at law, depending on the county, and the clerk's office can say which one applies. Real-property affidavits are recorded in the deed records of the county where the property is located. The Travis County probate page (opens in a new tab) is one example of how a county presents this information.

What does it cost?

Costs vary by county, court, service method, estate complexity, attorney arrangement, required bond, ad litem appointment, publication, recording and the number of filings. Travis County's schedule, effective January 1, 2026, gives one dated example.

The county's e-filing schedule also shows a combined example of $1,068 for an application, constable service, two issuance fees, an ad litem deposit and an order fee. These are Travis County figures, not a statewide price and not an estimate for any particular estate. Attorney fees, bond premiums, appraisal costs, publication, certified copies and recording fees may be additional. TexasLawHelp explains that an attorney ad litem may be appointed when heirs are unknown or cannot be located, and the fee is set by the court or the local schedule. Ask the attorney or court-appointed professional about the fee arrangement, and confirm any court-set fee with the county clerk in the filing county.

What is the Dead Man's Rule?

Texas Rule of Evidence 601(b) (opens in a new tab) applies only in certain civil cases: those by or against a party in the capacity of executor, administrator or guardian, and those by or against a decedent's heirs or legal representatives that rest in whole or in part on the decedent's oral statement. In those cases a party may not testify against another party about an oral statement by the decedent, unless the testimony is corroborated or the opposing party calls the party to testify about the statement at trial. The rule also requires a jury instruction when evidence is excluded. It concerns testimony about oral statements, not every fact involving a deceased person. Texas rule, as of October 1, 2026.

Frequently asked questions

Who inherits in Texas if there is no will?

The heirs are determined under Estates Code Chapter 201, and the result depends on the surviving spouse, the children or descendants, the parents, the siblings and how the property is classified.

Does the surviving spouse get everything?

Not always. Community-property rules differ from separate-property rules, and a child who is not also the surviving spouse's child changes the community-property result.

Do stepchildren inherit automatically?

A stepchild does not become the decedent's child under intestate succession merely through the marriage. An adopted child is treated as the child of the adoptive parent.

A next step

If you are sorting out an estate in Texas, you can find probate and estate lawyers in Counselado's directory by city and practice area, and then confirm each lawyer's license with the State Bar of Texas before you reach out.