When someone passes away without leaving a will in Texas, the legal question that immediately arises is: how does probate work without a will in Texas? This situation, called dying intestate, kicks off a specific court-driven process for settling the deceased’s estate. Without written instructions left behind, the Texas probate court must step in and follow state laws to determine who inherits what—and that can lead to outcomes many families never expect.
Let’s explore this process from start to finish, using real-life stories, plain-English explanations, and a close look at how Texas law governs intestate estates. If you’re navigating a probate case right now, or you’re planning for the future, understanding how probate works without a will in Texas is essential to avoid surprises and protect your family’s interests.
The Importance of a Will—And What Happens Without One
You’ve probably heard that creating a will is a smart move. But many Texans still pass away without one. When that happens, the law doesn’t just throw up its hands—it takes over. In Texas, if someone dies without a valid will, their estate goes throughintestate probate.
This isn’t an informal process. The court gets involved to identify heirs, appoint someone to manage the estate, and ensure that debts and taxes are paid before distributing anything. This is why it’s crucial to understand how does probate work without a will in Texas, especially if you’re an heir or a close relative of the deceased.
First Things First: Initiating Probate Without a Will
The first step in probate without a will is getting the court involved. Typically, a family member—usually a spouse, adult child, or even a creditor—files an application to open probate in the county where the deceased lived. This is usually done in the probate court or county court-at-law with probate jurisdiction.
Once the application is filed, there’s a mandatory waiting period before a hearing is scheduled. This gives time for any potential will to come forward. If no will is found, the judge declares the estate intestate and starts applying Texas’s intestacy laws.
At this point, the court appoints a personal representative, also called an administrator, to oversee the estate. Unlike an executor named in a will, this person is chosen by the court and may have to post a bond and receive court approval for many decisions.
The Texas Estates Code: The Blueprint for Distribution
In intestate cases, Texas doesn’t guess who should inherit. It follows a set of rules laid out in the Texas Estates Code, which dictates who gets what based on the decedent’s family structure. This part of how probate works without a will in Texas often surprises people—because the law’s assumptions don’t always match personal relationships.
Scenario 1: Survived by Spouse, No Children
Let’s say John dies without a will, leaving behind his wife, Susan, and no children. You might assume Susan gets everything—but not so fast.
If John owned separate property (property acquired before marriage or by gift/inheritance), the law splits it:
- Susan gets one-third of John’s separate personal property.
- The remaining two-thirds goes to John’s surviving parents or siblings.
- Susan may get a life estate in one-third of his separate real property, with the rest going to his family.
On the other hand, community property (most property acquired during marriage) typically goes to the surviving spouse—unless John had children from another relationship.
Scenario 2: Children from Multiple Relationships
This is where intestacy gets really tricky.
Imagine Mary dies without a will. She was married to Joe, and they had two kids together. But she also had a son from a previous relationship. What happens?
- Her half of the community property goes to her children, not her husband.
- Joe only gets a portion of her personal property and a life estate in her real estate.
- Her separate property is divided among all her biological children.
This is why understanding how does probate work without a will in Texas is so important—especially in blended families.
Who Can Be an Heir?
Only legal heirs can inherit under intestacy. That typically includes:
- Biological children
- Adopted children (fully equal in inheritance rights)
- Legal spouse (common law marriage may qualify with proof)
- Parents and siblings (if no spouse or children exist)
But not everyone is included:
- Stepchildren are not heirs unless legally adopted.
- Unmarried partners don’t inherit, regardless of how long they lived together.
- Friends, caretakers, or charities—no matter how beloved—are left out.
This is one of the key areas where dying without a will often goes against someone’s actual wishes. If you’ve got a close connection to someone who died without a will, you may be shocked at how Texas law views your relationship.
The Heirship Determination Process
In intestate cases, especially when there are multiple heirs or unclear relationships, the court will often require a heirship proceeding. This is a formal process that includes:
- Filing an Application to Determine Heirship
- Appointing an attorney ad litem to represent unknown or missing heirs
- Holding a court hearing, where witnesses may testify about family relationships
Only after this process can the judge issue a judgment declaring heirship, which legally identifies who inherits and in what shares. This judgment becomes the basis for dividing the estate.
What About the Debts?
Before heirs see a dime, the estate must pay its bills. And that includes:
- Funeral costs
- Final medical bills
- Credit card debts
- Mortgages
- IRS taxes
If there’s not enough money to cover these, the court may order property sold to satisfy creditors. How does probate work without a will in Texas when there are more debts than assets? Heirs may walk away with nothing—and in some cases, the estate may not be worth probating at all.
But don’t panic—heirs usually aren’t personally responsible for the deceased’s debts. The estate pays what it can, and any remaining debts die with the person.
Can the Court Skip Full Probate?
Yes—Texas offers simplified probate procedures when the estate is small or meets certain conditions. These alternatives may apply when someone dies without a will:
Small Estate Affidavit
If the estate’s value (excluding the homestead and exempt property) is less than $75,000, heirs can file a small estate affidavit. This skips formal probate and speeds up distribution—especially useful for surviving spouses or adult children handling affairs on their own.
But this doesn’t work for estates that include real estate (other than a homestead). It’s best for personal property like cars, bank accounts, or small investments.
Muniment of Title (Not for Intestate Cases)
This option doesn’t apply when there’s no will, but it’s worth mentioning since many people confuse it. Muniment of title is only for testate estates with no unpaid debts and a valid will. So, if there’s no will, this simplified route is off the table.
The Role of the Administrator in Texas Intestate Probate
Once the court appoints an administrator, they step into the shoes of the deceased for legal purposes. Their responsibilities include:
- Gathering assets
- Notifying creditors
- Paying bills
- Filing tax returns
- Keeping records
- Distributing property according to the court’s ruling
Unlike an executor named in a will (who often has independent authority), administrators typically operate under dependent administration, meaning they must seek court approval for most decisions.
This extra supervision is meant to protect heirs and creditors, but it also means more time, paperwork, and legal costs.
Real-Life Example: The Estranged Sibling Surprise
Let’s walk through a real-world example that shows how intestate probate in Texas can play out.
Tina, a Houston woman in her 50s, dies suddenly with no spouse or kids. She owned a home and had a decent retirement account, but never got around to writing a will. Her brother, Mark, steps up to handle the estate.
To his shock, the court demands an heirship proceeding. Turns out, Tina’s father had a child from another relationship—someone Mark never met. The court appoints an attorney ad litem who tracks down the half-brother, who now lives in El Paso.
In the end, the estate is split 50/50 between Mark and his half-brother, even though they never met and Tina hadn’t spoken to the half-brother in decades. This is the kind of unintended result that frequently happens in intestate estates.
Common Pitfalls and Mistakes in Texas Intestate Probate
Now that we’ve explored how probate works without a will in Texas, let’s talk about the mistakes people make—and how to avoid them:
- Assuming you’ll inherit everything as a spouse – Texas law can be brutal if children from another relationship are involved.
- Ignoring stepchildren and long-term partners – The court doesn’t consider emotional bonds—only legal relationships.
- Waiting too long to open probate – Creditors, squatters, and even estranged relatives can complicate things if there’s a delay.
- Trying to distribute property without court approval – This can backfire legally and delay final resolution.
- Failing to hire a probate attorney – Especially in complex heirship cases, an experienced Texas probate lawyer can be a lifesaver.
Why the Court’s Role Matters in Intestate Probate
When there’s no will, the probate court’s job becomes central. It acts as referee, manager, protector, and legal enforcer. From approving the administrator to deciding who inherits, the court ensures the estate is settled fairly—at least according to Texas law.
But this court oversight comes at a cost. The process can take months or even years, depending on the complexity. And while the court protects legal rights, it can’t guarantee outcomes that align with the deceased’s actual wishes.
That’s why understanding how probate works without a will in Texas should motivate anyone with property or family to take action today—before the court has to make those decisions for them.
Conclusion: The High Stakes of Dying Without a Will in Texas
So, how does probate work without a will in Texas? The short answer: the court steps in, follows the Texas Estates Code, and applies a strict order of succession. There’s no flexibility, no guesswork, and no room for personal wishes—just the law.
If you’re facing this process as a grieving relative, it’s crucial to understand every step, from filing the application to the final distribution. And if you’re still alive (which I assume you are!), take this as a wake-up call. Don’t leave your legacy to chance—or to the whims of intestacy.
Want to avoid this mess? Write a will. If it’s too late for that, get help. Navigating intestate probate in Texas doesn’t have to be a nightmare—but only if you know the rules and act wisely
