What Happens to Your Assets in Texas If You Die Without a Will?
If you die without a will in Texas, the state distributes your assets according to what are called intestacy laws. Those laws follow a fixed formula based on your family relationships, and that formula may have nothing to do with what you would have wanted.
Your spouse may not receive what you assumed they would. Your children from a prior relationship may receive a share your current spouse did not expect. Assets you thought would go to a specific person may go somewhere else entirely.
I practice estate planning in Texas and I work with a lot of immigrant families who have not yet done this planning because they either did not know they needed it or they thought it was something they would deal with later. This post is for them, and for anyone else in Texas who does not have a will and has not thought through what happens without one.
How Texas intestacy laws actually work
Texas has a community property system, which means that property acquired during a marriage generally belongs equally to both spouses. When one spouse dies without a will, the distribution of community property depends on whether the deceased spouse had children, and whether those children are also the children of the surviving spouse.
If you are married with children and all of your children are also your spouse's children, your community property passes entirely to your surviving spouse. That is probably what most people would want, and in that specific situation the intestacy laws produce a reasonable result.
The situation changes significantly if you have children from a prior relationship. In that case, your half of the community property does not go entirely to your current spouse. Your children from the prior relationship inherit your share of the community property, and your surviving spouse retains only their own half. If your home is community property and you have children from a previous relationship, your spouse may find themselves co-owning your home with your children from another relationship.
That creates real practical problems that a will would have prevented.
Separate property, meaning property you owned before the marriage or received as an inheritance or gift during the marriage, follows different intestacy rules that involve a split between the surviving spouse and the children. The exact split depends on whether you have children and other specifics of your family situation.
What about families where one spouse is not a US citizen
For immigrant families in Texas, there are additional estate planning considerations that intestacy laws do not address at all. If your surviving spouse is not a US citizen, the unlimited marital deduction that allows assets to pass between US citizen spouses without estate tax does not apply in the same way. A planning tool called a Qualified Domestic Trust is designed to address this, but it must be established in advance through proper estate planning. If you die without a will and your spouse is not a US citizen, your estate may face tax consequences that a citizen's estate would not.
This is one of the reasons I think about estate planning and immigration planning together. Your immigration status and your spouse's immigration status affect what happens to your assets when you die. These are not separate subjects.
What a will lets you do that intestacy laws do not
A will lets you decide who gets what. It lets you name a specific executor who will manage your estate and carry out your wishes rather than whoever a court appoints. It lets you name a guardian for your minor children rather than leaving that determination to a court proceeding after your death. It lets you leave specific assets to specific people. It lets you account for the actual structure of your family, which may not match the structure that Texas intestacy laws assume.
A will also simplifies the process for the people you leave behind. Settling an estate with a will is generally faster, less expensive, and less contentious than settling one without. The people grieving you do not have to spend months in probate court figuring out what happens to your house.
How much does it cost to have a will drafted
Less than people think and significantly less than not having one costs your family later. Estate planning through an attorney means the document is drafted correctly, executed properly under Texas law, and actually valid when it needs to be used.
If you are in the DFW area or based in Texas and you do not have a will, call us. A consultation will tell you exactly what you need and what it costs to get it done.
Attorney Arzoo Connor
ARC Legal Services | Fort Worth, TX | Hablamos Español
469-200-0158 | www.arclawoffice.com
This post is for general informational purposes only and is not legal advice. Immigration law is complex and every case is different. Please consult a qualified attorney about your individual situation.
