If your loved one died without a valid will in Texas

5 min read

When someone dies in Texas without writing a will

  • In Texas, probate is almost always more expensive and takes longer when someone dies intestate (the legal term for not having a will).

  • To start the process, initiate probate in your county court and choose someone in your family to apply to be the adminstrator of the estate.

  • The court will appoint an administrator and, once debts and other financial matters have been settled, will distribute the remaining assets based on state law.

  • Texas law favors surviving spouses, as other states do, but the inheritance splits can get complicated fast judges apply the state’s intestate laws.

When someone dies in Texas without writing a will—whether they died young, they died suddenly, or if they simply could not could face their own mortality—it is going to make probate a lengthier and costlier process, in most cases.

With a valid will, the executor of an estate has written proof of your loved one’s wishes and ultimately is tasked with carrying out those instructions. Without a will, however, the state steps in and a probate judge will distribute inheritances based on Texas laws of intestacy. (Intestate is the legal description of an estate with no will.)

If your loved one has died without a will, your family will have to take action to initiate probate—and you may be in for some detective work to locate their assets, debts, and other financial information the court will require.

Getting probate started without a will in Texas

To begin the probate process, the person who is likely to inherit the most (based on the Texas succession law) needs to submit a probate application in the county in which the person passed away.

The application, if accepted, will result in an administrator being named in the letters of administration. This document legally empowers the administrator to act on behalf of the estate.

In most cases, this is either the surviving partner or, if both parents have passed away, the children.

Like an executor who is appointed in a will, administrators are responsible for closing accounts, selling property (if necessary), and paying any debts that were left behind before distributing any remaining assets based on Texas’ rules of intestacy.

This type of probate shouldn’t take more than 30 days, as long as there are no snafus that come up along the way.

Choosing an administrator for the estate

Typically, a valid will includes the name of the person who will serve as executor of the estate—the person responsible for leading the estate through probate and settling its affairs.

Without a will, that position is called an administrator. In most cases, the next of kin is the one who will apply—and the court decides whether to appoint them or, in some cases, find someone else to serve as administrator.

Whoever is chosen must meet state standards. To begin with, the person must live in Texas and must not have been convicted of a felony. In addition, they will most likely be required to post an executor bond (also known as a probate bond, a surety bond, or a fiduciary bond), whose amount is based on the value of the estate.

As administrator, you’ll need to prepare the heirs for the fact that probate costs can potentially take thousands out of their inheritance.

Should there be no one suitable to take on the role of administrator and no family member wants to step up and handle it, the court will step in and assign someone from outside the family to do it.

As administrator, you’ll also need to prepare the heirs for the fact that probate costs can potentially take thousands out of their inheritance. Even the simplest estate will likely pay $2,500 to $3,000 in fees and expenses, and for more complicated estates, costs can exceed $5,000.

Texas’ order of priority for inheritance

Once debts are settled, a probate judge will distribute any remaining assets based on Texas’ intestate laws. The rules are very specific in regard to who is entitled to what, according to their relationship to the person who died.

If you loved one is survived by a spouse but no children, parents, or siblings, then their spouse generally inherits the estate.

Or, if they are survived by children but no spouse, the children most likely inherit everything, split evenly.

And in the case of a young person who didn’t have a will, if they were not married and had no children, their parents will typically inherit their estate.

Beyond these most common scenarios, what each family member inherits depends on their relationship to the person who died as well as whether the assets are characterized as “community property” or “separate property.”

Since Texas is a community property state, anything acquired during a marriage is considered to be jointly owned by both spouses. When one dies, the other typically assumes full ownership.

Separate property refers to assets the late spouse owned before marriage, or acquired, even during marriage, by gift or inheritance.

Texas law lays out methods of splitting up the estate between community and separate property in every family scenario—with increasing complexity as the list of descendants grows.

For example, if your loved one is survived by a spouse as well as adult children:

• The spouse inherits all of the community property, plus 1/3 of the separate property.

• The children inherit everything else, split evenly.

For a full picture of the state’s succession rules, Texas’ Estates Code is a comprehensive resource that includes every possible scenario.

No matter who the heirs are, sorting out an estate without a will is more difficult than probating an estate with a valid will. It is a more time-consuming, more expensive process for your entire family because the court must step in to distribute assets. If you are the administrator of the estate, it may be helpful to begin preparing your family for what’s coming and explain how the estate is likely to be distributed—a loving act of service that benefits everyone