What Happens if You Pass Away Without a Will?

The basic purpose of estate planning is to have a distribution plan for your assets in your estate. Many estate planners have a Last Will and Testament, which bequeaths certain assets (like a house, car, bank account) to beneficiaries. Estate planning can accomplish other things, like naming successor guardians for minor children, shielding assets from lawsuits and creditors, and avoiding probate court entirely. 

The purpose of this blog, though, is to walk you through the general procedure for settling an estate of someone who has not even left behind a Will. In short: it can get fairly complicated. 

Opening the Estate

You might be somewhat familiar with probate court. This venue is where one’s death is legally recognized. Once the death has been formally recognized, final debts are paid off, assets are distributed to heirs, and all other loose ends are tied up. Having a Will in place can expedite the probate process. Fortunately, the process in Texas is relatively simple (even without a Will), but it can get quite messy. 

Nevertheless, an estate that is not covered by a Will or other estate planning document is considered to be “intestate.” Intestate succession is the method by which heirs receive probated assets. 

Who Gets What in Intestate Succession?

There’s a common misconception that spouses automatically get everything if the other spouse passes away. While it is true that spouses often have priority over a large portion of the estate, other heirs have statutory rights to a portion of the estate. 

To illustrate, let’s say the only family member that survives a decedent is the spouse. The decedent has no surviving parents, children, grandchildren, or siblings. In this situation, the spouse will receive the entire estate. It rarely plays out this way, though. Though the following guidelines may not completely apply depending on the type of property involved (real vs. personal, for example), intestate succession is generally executed as follows:

  • If a decedent is survived by a spouse and children who are also children of the surviving spouse, the surviving spouse gets 1/3 of the decedent’s separate property, all of the community property, and the right to use any real estate left behind. The remainder is split among the children. 
  • If a decent is survived by a spouse and children from another relationship, the spouse only receives half of the community property along with 1/3 of the separate property and right to use the real estate. The children receive the rest. 
  • The process gets even more complicated if the decedent is survived by parents and siblings (in addition to a spouse and children). 


Many people are surprised to hear that the state has a default estate plan for anyone who dies without a Will—the Texas intestacy laws. This is the state’s best guess at the way in which you would want your probate assets to be distributed. There’s a high probability that intestate succession differs from what you would actually want to happen. Another danger of not having a Will for your estate means that the legal process in probate court can be complex, expensive, and messy for your heirs. 

Whether you need help settling a loved one’s estate or setting up an estate plan for yourself, Albright & Lumpkin, PC would be honored to be your legal representation. We are proud to serve the hard-working people of League City. Please give us a call today at 281-736-1324 to see how we can help.

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