What Happens to Your Real Estate Property If You Die Without a Will?

Real Estate Property

If you reside in the state of Texas and die leaving a valid will that disposes of real estate property, then the real estate ownership will pass to the person who is to receive the land according to the will. However, the will must be probated in a court for this transfer to be effective.

If you die without a valid will, or if your will is never probated, then your real property is distributed under the intestacy laws of the state of Texas.

The applicable rules of “descent and distribution under Texas law vary depending on whether you are single or married and if had children or other heirs at the time of death. Depending on your particular circumstances, your heirs could include a surviving spouse, your parents, siblings, aunts, uncles, nieces, nephews, or even distant relatives you may not know. Only in the worst-case scenario, when no heirs exist, will your real estate property go to the state of Texas.

If You’re Single

If you are single (whether never married, divorced, or widowed) and you have children at the time of your death, then your real estate property will go to your children to share in equal parts. If any child has died before you, and that child has any children, then that child’s share will go to his or her descendants. If not, the deceased child’s share goes to his or her siblings.

If you are a single person with no children who is survived by both parents, then your father will receive half of your real estate property and your mother will receive the other half.

If you are single and have one surviving parent, but no siblings or descendants of deceased siblings, then all of your real estate property goes to your surviving parent.

If you are a single person survived by only one parent and by siblings (or a sibling’s descendants), then your siblings and the descendants of deceased siblings are entitled to one-half of the real property, and your surviving parent is entitled to the other half. If you are single and both your parents died before you, your real property goes to your siblings and/or their descendants. In either event, if you are at least survived by one sibling, the siblings’ portion is divided by the number of siblings; descendants of a predeceased sibling divide that sibling’s share equally. If all your siblings predeceased you, the siblings’ share is divided equally among all your nieces and nephews.

The foregoing rules apply when you and your siblings share the same parents. If you have half-siblings, your full siblings get a double share as compared with your half siblings.

If You’re Married

Community Property

If your real estate property is community property, in most cases the property goes entirely to your surviving spouse. But if you have children who are not also children of your surviving spouse, then the children will take your community real property share and the surviving spouse retains his or her share.

Separate Real Property

If it’s separate real property, it may be split between your surviving spouse, siblings, parents, and children. For example, if you have separate real property and you are married with children at the time of your death, your separate real property will all go to your children and your surviving spouse will get one-third interest in a life estate. All of your separate real property will be owned outright by your children when your surviving spouse is no longer living on the property. If you have no children, your surviving spouse receives one-half of your separate real property and the other half passes as if you were single (see above).

Unmarried Couples

If you are an unmarried couple living together, the surviving individual will not have any ownership rights to your real estate property. When you die without a will, your interest in the real property will be divided among your heirs. Texas intestacy laws only recognize the right of relatives to inherit property. Therefore, unmarried couples do not have any real property rights in their partner’s assets if they die, unless a will or other legal document clearly states otherwise. This rule applies to persons in domestic partnerships as well.

Intestate in Texas

Avoid Dying Without a Will. Consult an Attorney.

Preparing estate planning documents can be complicated and it would be wise to talk to an estate planning attorney licensed to practice law in Texas. An experienced estate planning attorney can assist you in preparing a valid will and other estate documents to meet your specific needs.


Elaine Price | Farrow-Gillespie & Heath LLP | Probate Proceedings

Elaine Price practices in the areas of probate, heirship determinations, and guardianship proceedings. She is certified by the State Bar of Texas as eligible to represent applicants and guardians for guardianship matters and to serve as a court-appointed attorney in guardianship proceedings in all Texas courts. Ms. Price is a graduate of the Thurgood Marshall School of Law and holds a Bachelor of Arts in political science from Prairie View A&M.

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