What Happens When Someone Dies Without a Will in Texas?

If you're reading this, someone you love has probably passed away—and you've just discovered there was no will. First, please know this: you are not alone, and there is a clear path forward.

Dealing with legal matters while grieving is overwhelming, but Texas law provides a defined process for determining who inherits, and most families navigate it successfully.

Here's what you need to know right now: When someone dies without a will in Texas (called dying "intestate"), the estate does not go to the state. Texas has specific inheritance laws that determine exactly who receives what. In most cases, property passes to the surviving spouse and/or children. There are multiple ways to handle the estate—and full probate isn't always required.

This guide walks you through Texas intestate succession laws, explains what happens to the house and other assets, and outlines your options including the affordable alternative many families don't know about: the affidavit of heirship.

Note: This article provides general information about Texas intestate succession laws and is not legal advice. Every situation is unique, and you should consult with a qualified attorney for guidance specific to your circumstances.

How Texas Decides Who Inherits Without a Will

When someone dies without a will, Texas Estates Code Chapter 201 determines who inherits—not the court, not family votes, and not the state (unless there are truly no living relatives anywhere). The law follows a specific hierarchy based on family relationships.

But first, a crucial concept unique to Texas and other community property states: the type of property matters as much as family relationships.

Community Property vs. Separate Property

Texas divides all marital property into two categories, and each follows different inheritance rules:

Community property includes almost everything acquired during the marriage—income, purchases, investments, and real estate bought with marital funds. Under Texas law, all property owned by married couples is presumed to be community property unless proven otherwise.

Separate property includes assets owned before marriage, inheritances received by one spouse, gifts given specifically to one spouse, and personal injury settlements (excluding lost wages). To qualify as separate property, you typically need clear documentation tracing the asset back to before the marriage or to a gift/inheritance.

The Complete Inheritance Hierarchy

The following table shows exactly who inherits under Texas law. These percentages come directly from Texas Estates Code §201.001-201.003:

Blended Families Face Different Rules

One of the most important—and often surprising—distinctions involves blended families. When the deceased had children from a previous relationship, the surviving spouse does not automatically inherit the deceased's share of community property. Instead, it passes directly to all of the deceased's children.

Example: David dies without a will. He was married to Maria and had three children—two with Maria and one from his first marriage. Under Texas law:

• Maria keeps her own half of community property
• David's half of community property goes to all three children equally (not to Maria)
• Maria receives only one-third of David's separate personal property
• The children receive the remaining two-thirds

This surprises many families who assumed the surviving spouse would inherit everything. It's one of the strongest arguments for creating a will.

When There's No Immediate Family

If someone dies without a spouse or children, the estate passes through extended family in this order:

1. Parents (equally if both survive; all to one if only one survives)
2. Siblings and their descendants (if no parents)
3. Grandparents (estate splits into maternal and paternal halves)
4. Aunts, uncles, cousins, continuing to more distant relatives

The estate only "escheats" (passes to the state) if there are absolutely no living blood relatives at any degree—an extremely rare occurrence.

What Happens to the House Without a Will?

For most families, the home is the largest asset—and the one that causes the most confusion. Real property follows the intestacy rules above, but there's a critical complication: the title doesn't automatically transfer.

When a property owner dies, the deed still shows their name. The heirs may legally own the property under intestacy law, but they cannot sell, refinance, or get a clear title insurance policy until ownership is formally established.

The Clouded Title Problem

A "clouded title" means there's uncertainty about who legally owns the property. This happens automatically when someone dies because:

• The deed still shows the deceased owner's name
• There's no recorded document identifying the new owners
• Multiple heirs may have inherited the property together
• Title companies cannot verify the ownership chain

Why it matters: Banks won't issue mortgages on properties with clouded titles. Title insurance companies won't insure them. Buyers won't purchase them. Until title is cleared, the property is essentially frozen.

Three Ways to Clear Title in Texas

Option 1: Full probate with heirship determination

A formal court proceeding that legally identifies all heirs. This requires attorney representation (mandatory under Texas law for heirship determinations), a court-appointed attorney ad litem to represent unknown heirs, two disinterested witnesses, and multiple court hearings.

• Cost: $3,000–$10,000+
• Timeline: 6–24 months

Option 2: Small estate affidavit

A simplified court-approved process for estates valued at $75,000 or less (excluding homestead and exempt property). Important limitation: only transfers the homestead, and only to a surviving spouse or minor children.

• Cost: $500–$2,000
• Timeline: 2–4 weeks

Option 3: Affidavit of heirship

A sworn document filed in county deed records that identifies the heirs of someone who died without a will. This option does not require court approval, can be filed immediately after death, costs significantly less than probate, and becomes prima facie evidence of ownership after five years on file.

• Cost: $400–$1,100
• Timeline: Immediate filing; strongest legal effect after 5 years

The affidavit of heirship is often the most practical solution for families who simply need to transfer or sell inherited real property.

What Happens to Other Assets?

Different assets follow different rules—and not everything goes through the intestacy process.

Bank Accounts

Joint accounts with rights of survivorship: The surviving account holder becomes sole owner immediately. Simply present a death certificate to the bank.

POD (payable on death) accounts: Pass directly to the named beneficiary, bypassing probate entirely. The beneficiary claims funds with a death certificate and ID.

Individual accounts with no beneficiary: Become part of the estate. Banks will freeze the account and require Letters of Administration from probate court—or a court-approved Small Estate Affidavit if the estate qualifies.

Vehicles

Texas allows vehicle title transfers through an Affidavit of Heirship for Motor Vehicles (Form VTR-262). You'll need:

• Form VTR-262 (notarized)
• Form 130-U (Application for Texas Title)
• Certified death certificate
• The original title (if available)
• Filing fee of approximately $35

File these at your county Tax Assessor-Collector's office. No probate required.

Life Insurance and Retirement Accounts

These assets have beneficiary designations that override intestacy laws. If the deceased named beneficiaries on life insurance policies, 401(k)s, IRAs, or pensions, those assets pass directly to the named beneficiaries—regardless of what intestacy rules would otherwise dictate.

Contact each financial institution directly. You'll need a death certificate and identification. Most claims are processed within 30–60 days.

Important: If no beneficiary was named (or if the named beneficiary died first), these assets may fall back into the estate and require probate.

Personal Property

Items like furniture, jewelry, clothing, and household goods follow intestacy rules but rarely require formal legal process. Most families divide personal property by agreement. Only create documentation if items have significant value or if disputes arise.

Do You Have to Go to Court?

Not always. Many families assume probate is inevitable, but Texas offers several ways to handle an intestate estate without full court proceedings. Understanding probate vs. affidavit of heirship can help you choose the right path.

When Probate Is Required

Texas law requires formal probate administration when:

• The estate has debts requiring formal administration to pay
• Real property needs partition among heirs who disagree
• Administration is necessary to collect estate assets
• Heirs cannot agree on distribution

When Probate May Not Be Required

You may avoid probate entirely if:

• All assets had beneficiary designations or joint ownership with survivorship rights
• The estate qualifies for a Small Estate Affidavit (under $75,000 excluding homestead)
• Real property can be transferred through an affidavit of heirship
• Only personal property remains and heirs agree on distribution

Cost and Time Comparison

For families primarily concerned with transferring real property, the affidavit of heirship often provides the most practical balance of cost, speed, and legal effectiveness. See our detailed comparison to determine which option is right for your situation.

What to Do Next: A Practical Timeline

Immediately (First 48 Hours)

• Obtain the legal pronouncement of death
• Contact a funeral home
• Locate important documents: will (if any exists), insurance policies, financial account statements, property deeds
• Secure the deceased's home and vehicles
• Notify immediate family members

First Week

• Order 10–15 certified death certificates through the funeral home or Texas Vital Statistics (first copy: $21; additional copies: $4 each)
• Notify Social Security Administration (1-800-772-1213)
• Contact life insurance companies to begin claims
• Notify banks and financial institutions
• Contact retirement plan administrators
• Secure valuable personal property
• Cancel unnecessary services and subscriptions

First Month

• Determine if probate is required or if alternatives exist
• If the estate includes real property, consider filing an affidavit of heirship in county deed records
• Transfer vehicle titles using Form VTR-262
• Open an estate bank account if needed for managing estate funds
• Begin notifying creditors
• Continue paying property taxes, mortgage, and insurance on real estate

Ongoing (First Six Months)

• Complete any required probate proceedings
• Pay valid creditor claims
• File the deceased's final income tax return (due April 15 following the year of death)
• Distribute assets to heirs after debts are resolved
• Close estate accounts

Common Questions and Complications

What if heirs disagree about the property?

When heirs cannot agree on what to do with inherited property, any heir can petition the court for a partition sale. The court will order the property sold and proceeds divided according to each heir's legal share. This is costly and time-consuming—reaching agreement among heirs is always preferable.

What about the deceased's debts?

Heirs are generally not personally responsible for a deceased person's debts unless they co-signed or the debt is a specific type of community obligation. Debts are paid from estate assets before distribution to heirs. If the estate doesn't have enough assets to cover debts, creditors simply don't get paid—they cannot pursue heirs' personal assets.

Texas provides strong homestead protections. The family home is generally protected from creditor claims, and surviving spouses and minor children have the right to remain in the homestead.

What if we can't find all the heirs?

Missing heirs complicate any estate process. For formal probate, the court appoints an attorney ad litem to represent unknown heirs and requires publication notice. For affidavits of heirship, the document must attempt to identify all heirs based on the family history known to the signers. If an heir is located later, they may have legal claims to their share of the estate. This is why thorough family research matters.

Are there tax consequences?

Texas has no state estate tax or inheritance tax. Texas voters approved a constitutional prohibition against these taxes.

Federal estate tax only applies to estates exceeding approximately $13.99 million per individual (2025). The vast majority of estates owe nothing.

Good news on capital gains: Inherited property receives a "step-up in basis" to fair market value at the date of death. If your parent bought a house for $100,000 and it's worth $400,000 when they die, your tax basis becomes $400,000. If you sell for $400,000, you owe zero capital gains tax.

How to Avoid This Situation in the Future

If going through this process has shown you anything, it's the value of having a will. Creating a basic will in Texas is straightforward and affordable:

• Texas allows handwritten (holographic) wills that don't require witnesses—though typed wills with proper witnesses are more reliable
• A simple will costs $200–$500 through an attorney
• Online legal services offer basic wills for under $100
• A will ensures your wishes are followed, not default state rules

For real property specifically, Texas now allows Transfer on Death Deeds (effective since 2015). These let property owners name beneficiaries who automatically inherit upon death—no probate, no affidavit of heirship needed.

Moving Forward With Confidence

Losing someone you love is hard enough without legal complexity adding to your burden. But Texas intestate succession laws, while detailed, follow a clear logic: property passes to close family first, with specific rules ensuring fair distribution.

Your estate likely doesn't require full probate. For many Texas families, an affidavit of heirship provides a faster, more affordable path to clearing title on inherited property—allowing you to sell, refinance, or simply have clear ownership without months of court proceedings.

The key is understanding your options and taking the right first steps. Whether that means filing an affidavit of heirship, pursuing a small estate affidavit, or going through formal probate, there's a defined path forward.

For more information about Texas inheritance law, visit the Texas Estates Code Chapter 201 on the Texas Legislature website, the Texas State Law Library's probate resources, or TexasLawHelp.org for self-help guides.