What property is inherited by your heirs in Texas if you die intestate (without a will or with a will that has been set aside because of a suit contesting the will) depends on what kind of property you have at your death. There are two kinds of property that are relevant to probate: probate property and non probate property. Non probate property includes joint accounts with right of survivorship, life insurance policies, retirement funds, IRA's, and any other account where you designate a beneficiary when you create the account. When you die, if you did not name your estate as the beneficiary, the property does not go to your estate to be distributed to your heirs, rather, it goes to the beneficiary or beneficiaries that you designated when you created the account.
Probate property is further designated as community property or separate property. You can find a discussion of these terms on this site under the Glossary by clicking on the words. You only have community property if you are married at the time of your death. If you are not married, are divorced or are a widow or widower when you die, all of your property is separate property.
Married – separate or community property
Separate Property –
- If no children – all personal property to spouse; one half of real property to spouse, balance to parents. If no parents living and no brothers or sisters or their descendants living, all to spouse.
- If children – one third of personal property to spouse, balance to children. Spouse has a one third life estate in real property, balance to children who also get spouse’s share once he/she dies.
Community Property -
- If there are children -
- If all children of the deceased person are children of surviving spouse – all to spouse.
- If some children of the deceased person are not also children of surviving spouse, all of decedent’s one half of the community will go to the children.
- If there are no children or descendants of the deceased – all to surviving spouse.
Not Married - only separate property
With children -
- All to children.
No children -
- To parents if they survive.
- If there is one surviving parent and no siblings or descendants of siblings, all to surviving parent.
- If there is one surviving parent and some surviving siblings, one-half to parent, siblings divide balance.
- If there is no surviving parent but some surviving siblings, each sibling, or their descendants if they did not survive, is entitled to a share of the estate based on the number of siblings.
Note: When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons; and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive (i.e. per stirpes or by the root and not per capita.) Estates Code §201.101.
Example: An intestate dies who was never married and who had no children. His parents predecease him. He had three siblings. Sibling A has one child and survives the intestate. Sibling B has two children but predeceases the intestate. Sibling C has three children and also predeceases the intestate. The estate is divided per stirpes and not per capita. The intestate's property is divided into three parts. The surviving sibling A gets one third; the two children of sibling B share one third and the three children of sibling C share one third.
Example: An intestate dies who was never married and who had no children. His parents predecease him. He had three siblings. Sibling A has one child. Sibling B has two children. Sibling C has three children. All of the siblings predecease the intestate. The estate is divided per capita and not per stirpes. The estate is divided into six shares and each of the surviving nieces and nephews receive one sixth.