Few legal situations leave families more confused or overwhelmed than navigating probate court and intestacy issues. These two concepts—probate and intestacy—often collide when someone dies without a will. In Texas, the probate process becomes significantly more complex in such cases, with the court stepping in to decide how the decedent’s assets will be distributed.
This article offers a deep dive into what happens when a person dies without a will in Texas, how probate court takes over, and what families and heirs should expect. We’ll unpack the legal definitions, court procedures, and real-world consequences through practical examples and stories of Texas families who have faced these exact situations.
If you’re dealing with the sudden loss of a loved one and are staring down probate court without a will in sight, this guide is for you.
What Is Probate Court and Why Does It Matter?
Probate Court 101
Probate court is the part of the judicial system that deals with settling a deceased person’s estate. Whether or not there’s a will, probate court ensures that debts are paid, taxes are settled, and the remaining property is distributed—either according to the decedent’s will or according to state law.
When a will exists, the court’s role is mostly supervisory. But when there’s no will—known as intestacy—the court becomes the decision-maker. And that’s where probate court and intestacy issues often become emotionally and legally complicated.
What Is Intestacy?
Dying Without a Will in Texas
Intestacy occurs when a person dies without a valid will. In such cases, their estate is considered “intestate,” and their property must be distributed according to the Texas Estates Code’s default rules. The state doesn’t guess what the person might have wanted—it simply follows a predetermined hierarchy of heirs.
That means the court won’t consider close friends, unmarried partners, or stepchildren if they aren’t legally recognized heirs under Texas law. That’s why probate court and intestacy issues can feel unfair or impersonal to grieving families.
How Probate Court Handles Intestacy in Texas
Step-by-Step Overview
Let’s break down what happens when probate court gets involved in an intestate estate in Texas:
- Filing the Application for Probate
A family member or interested party files an application with the probate court to open an estate. This initiates the legal process and signals the court to begin identifying heirs. - Posting Notice
Texas requires notice of the probate application to be posted at the courthouse for at least ten days. This gives anyone with an objection time to respond. - Court Hearing
If no objections arise, the court holds a hearing to determine whether an administration of the estate is necessary and to appoint a personal representative (called an administrator, instead of an executor, in intestate cases). - Appointment of Administrator
The administrator is tasked with managing the estate—paying debts, handling assets, and eventually distributing property to heirs. - Heirship Determination
This is a crucial part of the process. When someone dies intestate, probate court and intestacy issues require the court to legally determine the rightful heirs. This can involve genealogical testimony and court-appointed attorneys ad litem if necessary. - Asset Distribution
Once debts are settled and heirs are confirmed, the court oversees the distribution of the estate according to the statutory heirship rules in Texas.
Real-Life Story: Probate Without a Will
Meet Angela, a schoolteacher in El Paso, who passed away unexpectedly at 59 with no will. She had two adult children from a prior marriage and a long-term partner she never legally married. Angela assumed everything would “just go” to her partner, since they’d been together for over 15 years. Unfortunately, under Texas intestacy law, her partner received nothing.
The court appointed one of her adult children as administrator. After a full heirship proceeding, the estate was divided between her two children—leaving the partner completely out. The probate court followed the law, not the relationship.
Angela’s case is a textbook example of how probate court and intestacy issues can blindside families.
Who Inherits Under Texas Intestacy Laws?
Breaking Down the Legal Heirship Hierarchy
When probate court determines heirs in intestacy cases, it uses a fixed hierarchy:
- Spouse and children (if married at the time of death)
- Children only (if unmarried or widowed)
- Parents (if no spouse or children)
- Siblings
- More distant relatives like aunts, uncles, cousins
If none of these exist, the estate eventually escheats to the state—meaning Texas becomes the heir.
What makes probate court and intestacy issues so difficult is that this order doesn’t consider emotional bonds or intentions—just legal status.
Common Challenges in Intestacy Cases
The Pitfalls Families Don’t See Coming
Some of the most common problems seen in probate court and intestacy issues include:
- Multiple marriages with children from different unions
- Unmarried life partners with no legal protections
- Estranged family members suddenly appearing as heirs
- Heir disputes—especially when real estate is involved
- Hidden assets or debts unknown to surviving family
Each of these can delay the probate process, increase legal costs, and cause lasting damage to family relationships. The court must follow the law even when it produces unintended results.
Intestacy vs. Having a Will: The Legal and Emotional Costs
Why Planning Ahead Matters
Dying intestate may not seem like a big deal to some people—but the costs are more than financial. Consider:
- Time – Probate in intestacy cases often takes much longer
- Cost – Additional court hearings, attorney’s fees, and administration expenses
- Stress – Families must make tough decisions with no guidance
- Disputes – Intestacy is a breeding ground for family conflict
This is why attorneys emphasize estate planning: avoiding probate court and intestacy issues is often as simple as drafting a legally valid will.
The Role of the Court-Appointed Attorney Ad Litem
Who Protects Missing or Unknown Heirs?
In intestacy cases where the full list of heirs is unclear, Texas probate courts appoint an attorney ad litem to represent the interests of any missing, unknown, or minor heirs.
This attorney investigates the decedent’s background, interviews family members, and submits a report to the court. Their findings help ensure that all rightful heirs are accounted for—especially in complex or contested estates.
This step is crucial in ensuring fairness, but it adds another layer of time and expense to probate court and intestacy issues.
Can You Avoid Probate Without a Will?
The Limits of Non-Probate Transfers
Some assets pass outside of probate, even without a will. These include:
- Joint accounts with right of survivorship
- Payable-on-death (POD) designations
- Life insurance policies with named beneficiaries
- Retirement accounts with valid beneficiaries
However, these tools are limited. They don’t cover real estate, vehicles, or personal property unless those items are also formally titled with survivorship terms.
In intestacy situations, probate is often required for these remaining assets—bringing families right back into probate court and intestacy issues even if some items are easily transferred.
What Happens If Heirs Disagree?
Disputes Can Bring Probate to a Halt
When heirs disagree about who should administer the estate, how assets should be handled, or even who qualifies as an heir, probate court must step in to resolve the conflict.
Common disputes include:
- One sibling wanting to sell the family home while another wants to keep it
- A family member accusing the administrator of mismanaging funds
- A surprise heir appearing with claims of legitimacy or paternity
Probate court and intestacy issues are especially prone to litigation because there’s no written will to guide decisions. In these cases, courts rely heavily on the Estates Code and formal legal processes to settle the matter.
How Much Does Intestate Probate Cost?
A Financial Breakdown
Costs vary by county, but common expenses include:
- Filing fees – $300 to $500
- Attorney fees – Varies; often hourly or flat-fee
- Administrator’s bond – Required in many intestate cases
- Heirship hearing fees – Additional court time and paperwork
- Ad litem attorney fees – Court-appointed representation adds cost
Many families are surprised to find that probate court and intestacy issues can consume 5–10% of the estate’s value in legal and administrative fees—costs that might’ve been avoided with even a basic estate plan.
Avoiding Intestacy: Simple Steps That Make a Big Difference
How to Prevent Probate Confusion
The good news is that probate court and intestacy issues are avoidable. Here are steps to consider:
- Create a valid Texas will with clear executor and beneficiary instructions
- Use payable-on-death designations for financial accounts
- Title real estate with survivorship rights or place it in a trust
- Talk to an estate planning attorney about your options
- Update your documents regularly after major life changes
These steps don’t require huge wealth—just thoughtful planning. In doing so, you ensure that your estate passes efficiently, privately, and in line with your wishes.
Final Thoughts on Probate Court and Intestacy Issues
Probate is hard enough with a will in place. But probate court and intestacy issues multiply the confusion, cost, and emotional toll when families are left guessing.
Texas has procedures in place to handle intestate estates, but they often produce results that don’t align with what the deceased would have wanted. For that reason, understanding how intestacy works—and how to avoid it—is one of the most valuable legal lessons any Texan can learn.
Whether you’re already navigating probate without a will or looking to prevent future problems, the best time to act is now. Because in probate, clarity isn’t just helpful—it’s everything.
