What Happens If You Die Without a Will in Texas?
Texas is a community property state, so the surviving spouse already owns half of what the couple acquired during the marriage. Without a will in Texas, descendants divide what passes to them per capita with representationTex. Est. Code § 201.101Verified Sep 10, 2026View source, and an heir must survive the decedent by 120 hoursTex. Est. Code § 121.052Verified Sep 10, 2026View source to inherit.
Texas intestacy law decides. As a community property stateTex. Est. Code § 201.002Verified Sep 10, 2026View source, Texas distinguishes community property (acquired during the marriage) from separate property (owned before it, or received as a gift or inheritance), and the surviving spouse's share differs for each. The estate passes to the closest surviving relatives, in most cases the spouse and children first, then in order: Parents (and siblings when only one parent survives); Siblings and their descendants; Paternal and maternal kindred (two moieties)Tex. Est. Code § 201.002Verified Sep 10, 2026View source.
The surviving spouse's share in Texas depends on the family. With no children: Community: 100% to spouse. Separate personal: 100%. Separate real: 1/2 if parents/siblings survive, 100% if none surviveTex. Est. Code § 201.002Verified Sep 10, 2026View source. With shared children: Community property: 100% to spouse. Separate property: 1/3 of the personal property (everything other than land) outright, plus a life estate in 1/3 of the land, with the children taking the remainderTex. Est. Code § 201.002Verified Sep 10, 2026View source. When a child from a prior relationship survives: Community property: the spouse keeps their own half and the decedent's half passes to the decedent's children. Separate property: 1/3 of the personal property (everything other than land) outright, plus a life estate in 1/3 of the land, with the children taking the remainderTex. Est. Code § 201.002Verified Sep 10, 2026View source.
Texas divides per capita with representationTex. Est. Code § 201.101Verified Sep 10, 2026View source: shares are set at the nearest generation with a surviving heir, heirs of equal degree take equal shares, and a deceased heir's share passes to that heir's own descendants. Per capita with representation: heirs standing in the same degree take equal shares, and a deceased heir's share passes to that heir's own descendants.
Texas requires an heir to survive the decedent by 120 hoursTex. Est. Code § 121.052Verified Sep 10, 2026View source to inherit; an heir who dies within that period is treated as having died first, and the share passes to the next eligible heir. When one spouse dies without a will in Texas, how each asset is classified, community or separate, decides what passes and to whom; with shared children the surviving spouse takes Community property: 100% to spouse. Separate property: 1/3 of the personal property (everything other than land) outright, plus a life estate in 1/3 of the land, with the children taking the remainderTex. Est. Code § 201.002Verified Sep 10, 2026View source.
Under Texas intestacy law, a stepchild or an unmarried partner does not inherit unless adopted or recognized by statute. In Texas, however, Parties to a Texas informal (common-law) marriage, provable by a signed declaration or by agreement plus cohabitation in Texas and holding out to others as marriedTex. Fam. Code § 2.401Verified Sep 10, 2026View source inherit with the same rights as a surviving spouse. Outside those situations, a will or trust is how a stepchild or an unmarried partner is provided for. The Texas will signing requirements set out what a valid will takes.
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Learn moreForms for Planning and Settling an Estate in Texas
Free Texas forms for planning an estate or settling one: a will, trust, powers of attorney, TOD deed, and the probate forms an executor files.
Notice to Creditors
In Texas, the notice to creditors is published for 1Tex. Estates Code §§ 308.051-308.056, 355.001-355.004, 355.060, 355.064, 355.102Verified Oct 19, 2026View source weeks in a local newspaper, and creditors have 4 monthsTex. Est. Code § 355.060 (121-day bar from a creditor's RECEIPT of the optional § 308.054 notice; § 403.055 is the identical bar in an independent administration); § 355.001 (claims may be presented any time before the estate closes when no § 308.054 notice is sent). Texas has NO claim period running from the § 308.051 published notice.Verified Sep 8, 2026View source from receipt of the mailed notice to present claims.
Renunciation of Executor
In Texas, a person named as executor may decline to serveTex. Estates Code §§ 301.051, 306.001Verified Sep 23, 2026View source before anyone is appointed.
Affidavit of Heirship
In Texas, heirs put their identity on the land records with an affidavit of heirship recorded with the countyTex. Estates Code ch. 203 (Nonjudicial Evidence of Heirship)Verified Sep 24, 2026View source; once recorded it is prima facie evidence of the facts stated.
Estate Inventory
In Texas, the personal representative files the estate inventory within 90 daysTex. Estates Code §§ 309.001, 309.051, 309.056, 309.101Verified Sep 15, 2026View source of appointment.
Estate Closing
In Texas, the personal representative is discharged automatically once the statutory period runsTex. Est. Code §§ 405.007, 405.003, 362.012, 362.013Verified Sep 15, 2026View source, and no final accounting is required.
Letter of Instruction
Prepare the letter a bank or insurer requests during estate settlement, addressed to its claims department.
Last Will and Testament
In Texas, a will is signed before 2Tex. Est. Code § 251.051Verified Sep 16, 2026View source witnesses, and a self-proving affidavit signed with it lets the court admit it without witness testimonyTex. Est. Code § 251.051Verified Sep 16, 2026View source.
Healthcare Power of Attorney
Texas allows a choice for a healthcare power of attorney: 2Health & Safety Code § 166.164Verified Oct 15, 2026View source witnesses or a notary.
Tools for Planning and Settling an Estate in Texas
Free calculators and checklists for planning or settling an estate in Texas: will and trust costs, probate, executor pay, and inheritance taxes.
How Much Does Probate Cost?
Probate on a $500,000 estate in Texas costs an estimated $27,634Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source. Attorney fees run 2.2%Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source to 3.5%Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source of the estate under a reasonable-compensation standard.
What Are the Burial and Cremation Laws in My State?
Texas allows you to name your own agent in advanceTex. Health & Safety Code § 711.002(a)(1), (b), (c), (g)Verified Oct 17, 2026View source, and that designation takes priority over the order of next of kin who otherwise control disposition of the remains.
How Much Are Estate & Inheritance Taxes?
Texas levies no estate or inheritance taxNo state estate or inheritance tax; Tex. Const. Art. VIII, § 26 (added Nov. 4, 2025 — HJR 2, 89th Leg., R.S., approved as Prop. 8) constitutionally prohibits any state estate, inheritance, or death tax. Former inheritance tax (Tex. Tax Code Ch. 211) repealed by SB 752 (84th Leg., R.S. 2015), effective Sept. 1, 2015; pick-up tax inoperative since EGTRRA 2001.Verified Sep 15, 2026View source; only the federal estate tax applies above $15,000,00026 USC 2001(c), 2010; P.L. 119-21 §70106Verified Sep 15, 2026View source.
What Taxes Apply to My Inheritance?
Texas imposes no inheritance or estate taxNo state estate or inheritance tax; Tex. Const. Art. VIII, § 26 (added Nov. 4, 2025 — HJR 2, 89th Leg., R.S., approved as Prop. 8) constitutionally prohibits any state estate, inheritance, or death tax. Former inheritance tax (Tex. Tax Code Ch. 211) repealed by SB 752 (84th Leg., R.S. 2015), effective Sept. 1, 2015; pick-up tax inoperative since EGTRRA 2001.Verified Sep 15, 2026View source; probate assets arrive when the estate closes, 4 months to 6 months for a simple estate.
How Does Step-Up in Basis Work?
Inherited assets in Texas take a basis reset to fair market value on the date of death26 USC § 1014Verified Sep 15, 2026View source, and the gain on a later sale faces no state capital gains taxTex. Const. Art. VIII § 24-b, CAPITAL GAINS TAX PROHIBITED (added Nov. 4, 2025) — "the legislature may not impose a tax on the realized or unrealized capital gains of an individual, family, estate, or trust"; and § 24-a, INDIVIDUAL INCOME TAX PROHIBITED (added Nov. 5, 2019)Verified Sep 15, 2026View source.
What Are the Estate Laws in My State?
Probate on a $500,000 estate in Texas costs an estimated $27,634Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source and takes 4 months to 6 months for a simple estate, with attorney fees of typically 2.2%Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source to 3.5%Tex. Est. Code § 352.051 (reasonable and necessarily incurred fees; no statutory percentage)Verified Sep 8, 2026View source of the estate. Estates under $75,000Tex. Est. Code § 205.001/205.006Verified Sep 8, 2026View source can use a small-estate procedure instead.
When Do I Have to Withdraw an Inherited IRA?
See which federal withdrawal rules apply to an inherited IRA, Roth IRA, or employer plan, the deadline year, and the missed-withdrawal tax.
How Much Can an Executor Charge?
Texas pays executors reasonable compensationTex. Est. Code §§ 352.002, 352.003Verified Sep 8, 2026View source, typically 2.2%Estimated from the 16 state statutes that set an executor fee schedule (median and interquartile range at this estate value)Verified Sep 8, 2026View source to 3.8%Estimated from the 16 state statutes that set an executor fee schedule (median and interquartile range at this estate value)Verified Sep 8, 2026View source of the estate.
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