Inheritance Rights in Texas When There's No Will

When heirship applies

Heirship is what happens to property that no valid will controls. That covers more situations than people expect:

The person never made a will.
There was a will, but the original can't be found and the will can't be proved in court.
The will was set aside in a will contest, and there is no earlier valid will to fall back on.
The will was revoked.
The will is valid but doesn't cover all the property. Whatever it leaves out passes by heirship.

In each of these, the property goes to the heirs Texas law names, in the shares the law sets (Texas Estates Code chapter 201). What the family believes the person wanted doesn't change that.

Who inherits

If there is no surviving spouse, the order is:

Children, and the descendants of any child who has died. A deceased child's share goes to that child's own children.
If there are no children or descendants: the parents, equally. If only one parent is living, that parent takes half and the other half goes to the person's brothers and sisters and their descendants.
If neither parent is living: brothers and sisters, and the descendants of any who have died.
If there are none of those: the estate is split in half, one half for the father's side and one half for the mother's side, starting with the grandparents and then their descendants: aunts, uncles, and cousins.

The list keeps going outward until it finds a living relative. It is rare for a Texas estate to have no heirs at all.

When there is a surviving spouse

This is where most of the confusion, and most of the disputes, come from. Two questions decide the spouse's share.

Was it community property or separate property?

Roughly, community property is what either spouse acquired during the marriage. Separate property is what one spouse owned before the marriage, or received during it by gift or inheritance. The two pass differently.

Community property

If the person left no children, or all of their children are also the surviving spouse's children, the surviving spouse gets all of the community property.
If the person had any child who is not also the surviving spouse's child, such as a child from an earlier marriage, the person's half of the community property goes to their children. The surviving spouse keeps only the half that was already theirs.

That second rule surprises a lot of stepfamilies. A stepparent who believes "it all comes to me" is often wrong about it.

Separate property

If the person left children:

The spouse gets one-third of the personal property: money, vehicles, accounts, belongings. The children get the other two-thirds.
The spouse gets the right to use one-third of the land for life. The children own the land, and get that third outright when the spouse dies.

If the person left no children:

The spouse gets all of the personal property and half of the land.
The other half of the land goes to the person's parents, brothers and sisters, in the order above. If there are none of them, the spouse gets it all.

An informal marriage counts

A common-law (informal) spouse is a spouse for inheritance purposes, if the marriage can be proved. After a death, that is often the first fight. See how a family ring proved a common-law marriage after death, and whether a divorce was final before the death, which can decide whether someone is a spouse at all.

Adopted children, half-siblings, and children of unmarried parents

Adopted children inherit from their adoptive parents exactly as biological children do. They can also still inherit from their biological parents, although the biological parents can't inherit from them. Texas also recognizes a child who was treated as adopted but never formally adopted (equitable adoption, or adoption by estoppel), which has to be proved.

Half-brothers and half-sisters inherit, but when they share with full brothers and sisters, each half-sibling receives half as much as each full sibling.

A child of unmarried parents always inherits from the mother. The child inherits from the father if paternity was established during his life (for example, by a court order or a signed acknowledgment of paternity), or if he adopted the child. If none of that happened, the child can still ask the probate court to declare the father's paternity, but has to prove it by clear and convincing evidence, a higher standard than usual. More on this under newly found heirs.

What it looks like when someone is left out

Heirship disputes rarely begin as a legal question. They begin with something that doesn't add up.

"There's no will, so it all goes to me." Said by a surviving spouse when the person had children from an earlier marriage, or by one child to the others.
A child from an earlier relationship was never mentioned. Not told about the death, the funeral, or the house.
An affidavit of heirship was recorded that leaves someone out. These are filed in the county property records, often to sell land, and they are sworn statements of who the family is.
The house was sold or refinanced soon after the death, without everyone who owns part of it signing.
One relative moved into the house and has been treating it as theirs, with no probate ever opened.
Someone you've never heard of is claiming to be a child or a spouse.
A court has already declared the heirs, and you learned about it afterward.

Any one of these can have an innocent explanation. Families often don't know the rules, and a lot of property sits in the dead person's name for years simply because nobody dealt with it. It's the pattern that matters.

How a proceeding to declare heirship works

The court process is called a proceeding to declare heirship. It's filed in the probate court in the county where the person lived, and anyone who claims to own part of the estate can start one.

Notice goes to the heirs. Known heirs are entitled to be served.
The court appoints a lawyer for unknown heirs. This lawyer is called an attorney ad litem. Their job is to look for heirs whose names or whereabouts nobody knows, and to protect their interests.
The family history has to be proved by disinterested witnesses. The law requires testimony from two disinterested and credible witnesses, people who don't inherit, about the family and who the heirs are. If a diligent search turns up only one, one can be enough.
The court signs a judgment declaring who the heirs are and what share each one owns. That judgment is what lets title companies, banks, and buyers deal with the property.

An heirship proceeding is also available when there is a will, if the will doesn't cover all the property. See heirship when there is a will.

Deadlines

For someone who died on or after January 1, 2014, there is no deadline to start an heirship proceeding. If the person died before then, older rules may apply. It's more complicated, but not necessarily too late.

If the court has already declared the heirs and you were left out, the timing is different. An heir who was not properly served can ask the court to correct the judgment, generally within four years of it. After that, it takes proof of actual fraud.

Separately, if property has been sold to someone who paid for it in good faith, getting it back can become much harder. Waiting rarely helps.

What evidence matters

People who knew the family. Neighbors, family friends, church members, and in-laws who don't inherit are the witnesses the law asks for. They can say who was married to whom, who the children were, and who raised whom.

Records. Birth certificates, marriage licenses, divorce decrees, death certificates, obituaries, and funeral programs. A divorce decree, or the lack of one, can decide whether a spouse is a spouse.

Recorded affidavits of heirship. A sworn statement about the family that has been in the county property records for five years is treated as evidence that it's true. That cuts both ways. If one leaves you out, you can still prove the real facts, but it's better to deal with it early.

Paternity evidence. For a child of unmarried parents: an acknowledgment of paternity, a court order, the father's own statements and conduct, and genetic testing.

Proof of an informal marriage. How the couple lived and how they presented themselves to others, and, after a death, evidence that backs up the survivor's own account.

What to do next

Confirm there really is no will. Check the county clerk's probate records where the person lived, and ask whether a lawyer drafted one. If there is a will, the rules and deadlines are different.
Write out the family tree. Every marriage and divorce, every child (including any from earlier relationships, and any who have died, with their children), parents, and brothers and sisters. Heirship turns on it.
List what the person owned, and how. Land and houses, accounts, vehicles. Note anything with a named beneficiary or a joint owner. Those may pass outside heirship.
Check the county property records. Look for deeds or affidavits of heirship filed after the death. They are public, and most counties have them online.
Write down who knew the family. People who don't inherit and can describe the family history. These are the witnesses the court will want.
Find out whether a court has already ruled. If there is already an heirship judgment, note its date. That is what the four-year period runs from.

Heirship — when there's no will

The short version