Most people know they should have a will. Financial advisors mention it. Friends who’ve lost parents talk about it. Articles pop up periodically reminding everyone that proper estate planning matters. Yet a surprising number of Texans never get around to creating one. Some assume their spouse or children will automatically inherit everything. Others figure they don’t have enough assets to worry about. Many simply procrastinate, believing they have plenty of time to handle it later.
Then death arrives unexpectedly. A car accident, a sudden heart attack, or an illness that progresses faster than anyone anticipated leaves a family scrambling to handle an estate without any written instructions from the deceased. The survivors discover that dying without a will in Texas creates complications that a simple document could have prevented. Questions arise about who inherits what, who has authority to handle the estate, and whether the deceased’s actual wishes can ever be honored.
Does every Texas resident actually need a will? What happens when someone dies without one? How does having a will change the process of settling an estate and distributing property? Understanding what a will accomplishes—and what happens without one—helps answer whether creating this document should be a priority or just optional paperwork that some people need but others can skip.
Facts & Procedural History
Consider a common situation that plays out across Texas every year. Robert lived in Austin his entire life. He worked as an electrician, owned a modest home, had some retirement savings, and drove a paid-off truck. Robert married young, had two children, and divorced after fifteen years of marriage. Years later, he remarried. His second wife, Linda, had a daughter from her previous marriage.
Robert loved his family and wanted them taken care of after he died. He talked occasionally about creating a will but never followed through. He figured the law would handle things fairly. His kids would probably split everything, or maybe Linda would get it all since they were married. The details seemed complicated, and Robert kept putting off dealing with them.
At age fifty-eight, Robert suffered a fatal stroke. His death shocked everyone—he had seemed healthy and had no warning signs. Linda found herself suddenly widowed and unsure how to handle Robert’s estate. She assumed the house they shared would automatically become hers. Robert’s two adult children from his first marriage, David and Jessica, assumed they would inherit their father’s retirement accounts and other assets.
The reality proved more complicated than any of them expected when the probate administration started. Without a will, Robert’s estate had to be distributed according to Texas intestacy laws rather than according to his wishes or his family’s assumptions. Linda discovered she wouldn’t inherit everything despite being Robert’s widow. David and Jessica learned they couldn’t simply divide their father’s assets between them. Everyone needed to understand that dying without a will meant Texas law—not family preference or common sense—would determine who got what.
Linda decided to hire an attorney to help navigate probate administration. The attorney explained that Robert’s estate would need to go through the court system. Someone would need to be appointed as administrator since Robert hadn’t named an executor in a will. The process would take months and cost more than it would have if Robert had created even a simple will or trust.
This situation raised the fundamental question: would having a will have made this easier, cheaper, and more aligned with what Robert actually wanted for his family?
What Happens When You Die Without a Will in Texas?
When a Texas resident dies without a valid will, that person dies “intestate.” The term comes from Latin and simply means dying without having made a testament or will. Intestacy triggers a specific set of rules found in the Texas Estates Code that determine who inherits the deceased person’s property.
These intestacy rules represent the Texas Legislature’s best guess about how most people would want their property distributed. The legislature created a system that favors close family members and distributes property based on family relationships. Spouses, children, parents, and siblings occupy specific places in a priority order for inheritance.
However, intestacy rules apply a one-size-fits-all approach. They don’t account for individual family dynamics, special circumstances, or personal preferences. The law treats all children equally even if one child has greater needs or a closer relationship with the deceased. The law gives specific shares to a surviving spouse even if the deceased would have preferred different arrangements. The rules operate mechanically without considering whether they produce results the deceased would have wanted.
For many people, intestacy distribution matches their wishes reasonably well. Someone who wants everything to go to their spouse and children might find that intestacy accomplishes essentially that result. But even in these cases, the specific distribution percentages and the process for getting there differ from what a will could accomplish.
Intestacy also creates complications beyond just who inherits what. The estate must go through court-supervised administration. Since no will exists to name an executor, the court must appoint an administrator. Family members might disagree about who should serve in that role. The administrator must post bond—an insurance policy protecting the estate—which adds cost. The court maintains closer supervision over an intestate estate than over an estate with a will, requiring more court hearings and approval for various actions.
How Does Texas Intestacy Law Distribute Property?
The Texas Estates Code establishes different distribution rules depending on the deceased person’s family situation. Understanding these rules helps illustrate what happens without a will.
If the deceased was married at death, the surviving spouse’s inheritance depends on whether property is community or separate. Texas is a community property state, meaning property acquired during marriage generally belongs equally to both spouses. The surviving spouse already owns half of all community property. The deceased spouse’s half of community property passes according to intestacy rules.
For community property, if the deceased had children—whether from the current marriage or previous relationships—those children inherit the deceased spouse’s half. The surviving spouse ends up owning only their own half of community property, not all of it. This surprises many people who assume a surviving spouse inherits everything automatically.
Separate property follows different rules. Separate property includes anything owned before marriage, inherited during marriage, or received as a gift during marriage. If the deceased had children, those children inherit all the deceased’s separate real estate (land and houses). The surviving spouse gets only a life estate in that real estate, meaning the right to use it during their lifetime, but the children own it. For separate personal property (bank accounts, cars, retirement accounts), the surviving spouse gets one-third and the children split two-thirds.
If the deceased had no children but had surviving parents, those parents inherit the deceased’s separate property. If no children and no parents survive, the surviving spouse inherits everything. These rules create complex fractional ownership that often surprises families.
For unmarried individuals, intestacy rules follow a different pattern. If the deceased had children, those children inherit everything equally. If no children survived, the estate goes to parents. If no parents survived, siblings split the estate. The statute continues down a list of increasingly distant relatives—aunts and uncles, cousins, and so on—until it finds someone to inherit.
What Problems Does Intestacy Create for Families?
Robert’s family experienced several common problems that intestacy creates. These problems explain why having a will matters even for people with relatively simple estates and close families.
First, intestacy forced Robert’s estate into a more complicated and expensive probate process. With a will, Robert could have named an executor he trusted to handle his estate efficiently. The executor could have been Linda, one of his children, or a trusted friend. That person would have had clear authority immediately upon Robert’s death to gather assets, pay debts, and distribute property.
Without a will, Linda had to petition the court to be appointed administrator. David and Jessica had equal rights to apply for that position. If they disagreed about who should serve, the court would have had to resolve the dispute through a hearing. Even with everyone agreeing Linda should serve, the appointment process took several weeks and required court appearances and legal fees.
Second, the court might have required Linda to post an administrator’s bond. This insurance policy protects the estate if the administrator mishandles assets. The bond premium—typically a percentage of the estate value—came out of estate funds. A will could have waived the bond requirement, saving this expense. But intestacy law requires a bond unless all beneficiaries agree to waive it, and getting everyone’s agreement adds complexity.
Third, intestacy gave Robert’s children rights to his separate property that Robert might not have intended. The house where Robert and Linda lived was Robert’s separate property because he owned it before marriage. Under intestacy law, David and Jessica inherited that house. Linda received only a life estate, meaning she could live there during her lifetime but didn’t own it. When Linda eventually dies, the house belongs to David and Jessica.
This arrangement created awkwardness and potential conflict. Linda didn’t want to live knowing her stepchildren could force her to sell the house or could control decisions about it. David and Jessica didn’t want to own property jointly with their stepmother. They would have preferred different assets like their father’s retirement accounts. Everyone ended up with an ownership structure that satisfied no one.
Fourth, Robert’s retirement accounts went through intestacy distribution rather than beneficiary designations. Robert had never updated his IRA beneficiary form after remarrying. The form still listed his ex-wife as beneficiary. The IRA custodian wouldn’t pay to the ex-wife since the divorce ended her rights. But the account had to go through probate and be distributed under intestacy rules. This created tax complications and delayed distribution. A will naming specific beneficiaries for various assets could have provided clearer direction.
What Does a Will Allow You to Control That Intestacy Doesn’t?
A will gives you control over decisions that intestacy leaves to statutory default rules. Understanding what a will can accomplish shows why creating one matters.
First, a will lets you choose who inherits your property. You can leave everything to your spouse, divide assets among children equally or unequally, include friends or charities, or make any distribution that reflects your wishes. Robert could have left the house entirely to Linda so she wouldn’t face an awkward life estate arrangement. He could have given his retirement accounts entirely to his children. He could have divided personal property based on who wanted what rather than according to statutory fractions.
Second, a will lets you name an executor to handle your estate. This person gathers assets, pays debts and taxes, and distributes property to beneficiaries. You can choose someone you trust who has good judgment and organizational skills. Robert might have named Linda as executor, or his son David if he thought David would do a better job. The will would have given that person immediate authority without court appointment delays.
Third, a will can waive the requirement that your executor post bond. This saves the estate money that would otherwise go to bond premiums. Most people who trust someone enough to name them as executor don’t need an insurance policy protecting against that person’s misconduct. The will can simply state that no bond is required.
Fourth, a will allows you to create trusts for children or other beneficiaries who need managed distributions rather than lump sums. Parents of young children typically don’t want those children to inherit large sums outright at age eighteen. A will can establish a trust that holds assets until children reach twenty-five, thirty, or whatever age seems appropriate. The trust can make distributions for education, health care, or other needs before final distribution.
Fifth, a will lets you nominate guardians for minor children. If both parents die while children are young, the court must appoint someone to raise those children. A will can nominate who you want to serve as guardian. The court usually honors this nomination unless serious problems exist with the nominated person. Without a will, the court decides guardianship based on statutory priorities and what the court thinks is best, which might not align with what you would have chosen.
When Does a Will Matter Most?
Some situations make having a will particularly important. Understanding when a will provides the most value helps prioritize getting one created.
Blended families—like Robert’s—benefit greatly from wills. When you have children from previous relationships and a current spouse, intestacy rarely produces the distribution you want. You probably want your spouse to inherit substantial assets or have security in the family home. You probably also want your children to inherit eventually. A will can create distributions that balance these interests. Intestacy law doesn’t do this well.
Parents of minor children absolutely need wills to nominate guardians. If something happens to both parents, someone must raise the children. A will expresses your preference about who that should be. Family members might disagree about the best guardian, and your written nomination carries great weight with the court. Without a will, relatives might fight over who gets the children, creating trauma during an already difficult time.
People who want to benefit specific individuals or charities need wills. Intestacy only provides for family members in a specific priority order. If you want to leave something to a friend, a domestic partner you’re not married to, or a charitable organization, you need a will. The gift won’t happen through intestacy law.
Property owners with significant assets should have wills to manage the probate process efficiently. The larger your estate, the more expensive and complicated intestate administration becomes. An estate worth several hundred thousand dollars or more faces substantial court costs, administrator fees, and legal expenses. A well-drafted will streamlines administration and reduces costs.
People who want unequal distributions among beneficiaries need wills. Maybe one child has special needs requiring more financial support. Maybe you’ve already helped one child substantially during your lifetime by funding their education or down payment, and you want to equalize inheritances. Maybe one child doesn’t need financial help due to their own success. Intestacy divides assets equally among children. A will allows unequal distributions with explanations.
What Doesn’t a Will Control?
Understanding what a will can’t accomplish prevents misunderstandings about estate planning. Some assets pass outside of probate regardless of what your will says.
Life insurance policies pass to the beneficiaries named on the policy beneficiary designation form. The insurance company pays directly to those beneficiaries when you die. Your will can’t override the beneficiary designation. If your life insurance names your ex-spouse as beneficiary and you forget to change it, the insurance pays to your ex-spouse even if your will leaves everything to your current spouse.
Retirement accounts like IRAs and 401(k)s also pass according to beneficiary designations. The account custodian pays to whoever is named on the beneficiary form. Again, your will can’t override this. You need to keep beneficiary designations current and consistent with your estate planning wishes.
Bank accounts with payable-on-death (“POD”) designations pass directly to the named beneficiary. You can add POD designations to most bank accounts simply by filling out a form at the bank. Upon your death, the account pays to the POD beneficiary regardless of what your will says.
Real estate owned jointly with right of survivorship passes automatically to the surviving owner. If you and your spouse own your house jointly, the house becomes wholly your spouse’s property when you die. The will doesn’t affect this transfer. Similarly, if you add a child’s name to your deed as a joint owner with right of survivorship, that child inherits the property automatically.
Property held in a living trust passes according to the trust terms rather than through your will. People who create revocable living trusts transfer their assets into the trust during their lifetime. When they die, the trust property distributes according to trust instructions. The will only controls property you own individually in your own name at death.
These non-probate assets can create confusion. Someone might assume their will controls their entire estate, but substantial assets might pass outside the will. Estate planning requires coordinating your will with beneficiary designations and ownership arrangements to ensure everything passes according to your wishes.
How Complex Does a Will Need to Be?
Many people delay creating wills because they assume the process requires complicated legal documents running dozens of pages. The reality is that many people need only relatively simple wills.
A basic will might run just three to five pages. It names an executor, nominates guardians for minor children if applicable, makes specific bequests of particular items to particular people, and leaves the residue of the estate (everything not specifically mentioned) to designated beneficiaries. This straightforward structure works well for people with uncomplicated estates and clear distribution wishes.
More complex situations require additional provisions. Blended families might need detailed instructions about which assets go to the current spouse versus children from previous marriages. People with significant assets might establish trusts within their wills to manage distributions over time. Business owners might include provisions addressing business succession. The will’s complexity should match your situation’s complexity.
However, having a simple will beats having no will. Even a basic will accomplishes the most important goals: you choose who inherits, you name your executor, you waive bond requirements, and you nominate guardians for minor children. These provisions alone justify creating a will.
Some people use form wills they find online or purchase from office supply stores. These forms can create valid wills if properly executed. However, form wills may not address your specific situation adequately. They might contain language that doesn’t fit Texas law. They might omit provisions that would benefit your particular family structure. Most people benefit from having an attorney draft a will tailored to their circumstances.
The Takeaway
Whether you need a will in Texas depends on whether you want control over who inherits your property, who administers your estate, and how the probate process unfolds after your death. Texas intestacy law provides a default distribution scheme that works adequately for some people but poorly for many others. Blended families, parents of minor children, people with significant assets, and anyone who wants distributions different from statutory default rules should definitely have wills.
Even people whose intestacy distribution might match their wishes reasonably well benefit from wills because of the practical advantages during probate administration. Naming your own executor, waiving bond requirements, authorizing independent administration, and providing clear instructions all make estate settlement easier and less expensive for your survivors. Robert Martinez’s family struggled with complications and costs that a simple will would have avoided. His estate went through a more expensive probate process, his property distributed in ways he likely didn’t intend, and his family faced conflicts over an arrangement that satisfied no one. Creating a will requires a modest investment of time and money while you’re alive—a few hours with an attorney and typically somewhere between a few hundred to a few thousand dollars depending on your situation’s complexity. That investment pays dividends in reduced probate costs, faster administration, fewer family conflicts, and greater certainty that your property passes according to your wishes rather than according to statutory default rules that might not reflect what you would have wanted.
Do you need help with a probate matter in Austin or the surrounding area? We are Austin probate attorneys. We help clients navigate the probate process. Call today for a free confidential consultation, 512-273-7444.
Our Austin Probate Attorneys provide a full range of probate services to our clients, including helping with probate administrations. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
