What Happens if You Die Without a Will?

Most people know they need a will. And many of them fully intend on writing a will … someday. But life is busy and the will keeps getting put off. Eventually, someday becomes never. In fact, nearly half of American adults will die without a will in place. So what happens if you die without one?

The Texas legislature has passed laws that dictate who will get the property of someone who dies without a valid will. These are called the laws of “intestate succession.” (“Testament” is simply another name for a will. If you die without a will, you are said to have died “intestate”—that is, without a testament.) Texas’s laws of intestate succession are found in the Texas Estates Code Chapter 201.

The laws of intestate succession generally give your property to your heirs at law – your nearest family members. If you leave a spouse and children (or grandchildren), your property will usually be divided among them. If you die without children, some of your property will probably be given to your parents, siblings, nieces, or nephews. Different states use different percentages for dividing the property. If you don’t leave any close family members, your property may be divided among more extended family, such as grandparents, aunts, uncles, and cousins. In the rare situation where you don’t have any close-enough blood relatives alive when you die, the state government gets to have your property.

Suppose you live in Texas and your only close family members are your spouse and your sister. Under Texas law, if you die without a will, your spouse will get all of your community, or marital, property as well as all of you personal separate property. However, if you had separate real property, then your spouse would get half and your sister will get the other half.

But if you had a spouse and children from a prior marriage, then the distribution would be even more complicated. Notably, your marital home (community property) would go to your children and not your spouse. Your half would go to all of your children while your spouse would keep their half. This may not be what you want to happen. Here is a chart that shows the Texas intestate distribution.

Without a will, you also have no control over what happens to your family heirlooms or other special items. In a will, for example, you can leave your wedding ring to your daughter, or your coin collection to your brother. But without a will, all those special things may end up being sold so that the money can be divided among your heirs.

If you have young children, maybe the most important part of your will is naming someone to be their guardian, in case both you and your children’s other parent die.

It always takes a court order to appoint a guardian. But the judge will appoint the person you name in your will, unless there are serious reasons not to (for example, if the person has been convicted of child abuse). If you die without a will, however, and haven’t named a guardian, the judge will have to choose someone without your input.  

As careful and caring as the judge may be, he or she doesn’t know your children or what you would decide for them. The judge may make a decision that you would never make yourself. And if   a guardian has to be named, he or she will become the most important person in your children’s   lives, helping them overcome the tragedy of losing their parents and influencing them to go on to lead happy, productive lives. Do you really want to leave that decision up to a complete stranger?  

If you are ready to tackle estate planning for parents, start by sitting down with us. As your Personal Family Lawyer®, we can walk you step by step through creating a comprehensive Kids Protection Plan® that not only names a legal guardian for your child in your Will, but also ensures your kids care is fully provided for, in the short-term and the long-term, and in the event of your incapacity.

Working with a trusted Personal Family Lawyer® ensures your entire family is protected and cared for no matter what.