If you die without a will, you are said to die "intestate" and state law will determine how your property will be divided. The division may or may not be how you would like your estate divided. The Texas Estates Code provides for the following distributions:

(Note: Separate property is property acquired by a spouse prior to marriage or acquired after marriage by gift or inheritance. All other property acquired during marriage is presumed to be community property, absent a written agreement between the spouses.)

Married and have children (or their descendants)

  • Separate personal
    • 1/3 to surviving spouse
    • 2/3 to kids, divided equally
  • Separate real property
    • Life estate in 1/3 to spouse
    • 100% divided equally between kids, subject to spouse's life estate
  • Community property
    • Spouse retains his or her ½ of the community property
    • If all kids are also children of spouse
      • then spouse gets 100% of decedent's ½ of community property
    • If some kids are not also children of surviving spouse,
      • then decedent's ½ of the community property is divided equally among all of the decedent's kids (or the descendents of any kid who doesn't survive the parent).

Married, no kids or descendants

  • Separate personal property – 100% to surviving spouse
  • Separate real property
    • ½to surviving spouse
    • ¼ to each surviving parent
      • If either parent does not survive – then that parent's ¼ goes to your siblings or their descendants.
      • If neither parent survives, ½ goes to siblings/descendants.
      • If one parents survives but no siblings/descendants survive – ½ to the surviving parent
      • If no parents, siblings or descendants of siblings survive – 100% to surviving spouse
  • Community property – 100% to surviving spouse

Unmarried with kids or their descendants

  • 100% to the kids, divided equally (if any kid doesn't survive the parent, his share is divided among his descendants).

Unmarried, no kids or descendants:

  • Both parents survive – ½ to each
  • One parent and siblings or their descendants survive – ½ to parent, ½ to siblings
  • One parent survives, no siblings or descendants – 100% to parent
  • No parent survives, siblings/descendents survive – all to siblings or descendants
  • If no parents, siblings, descendants of siblings survive – goes up to grandparents.

These distributions may be exactly what you would choose if you prepared a will, but they may not.

Jointly owned accounts. You may assume that since you and your spouse jointly own stocks, brokerage accounts, bank accounts, and other assets, that the survivor will inherit. But that is only true if you have designated them as the beneficiary or pay-on-death recipient or you have followed the rules for establishing joint ownership with right of survivorship. This form of ownership does not result merely from owning property jointly and is not common in Texas. If you have not designated a beneficiary, these accounts and assets will probably pass as community property under the laws of intestacy.

Children with someone other than your spouse. Say you have two adult children from a prior marriage and one from your current marriage. If your home was your separate property, then your surviving spouse will be entitled to remain in the house during his or her life, but then your kids will divide it three ways. If the home was community property, then your wife will retain only one-half and the three kids will divide the other half. In either case, your surviving spouse won't be able to sell the house if she needs to take the equity out to support herself or if she needs to downsize to reduce expenses or if the house is too much for her to maintain – unless all of the kids consent. They can refuse to do so unless they are paid their share of the proceeds. It doesn't matter that you and your spouse have been married for over 30 years and acquired the property together. It doesn't matter that your spouse needs the money and the kids don't.

Unmarried. Say you are unmarried and have no kids, and you die without a will. One half of your estate will go to each of your parents. This may not be what you wanted if your parents divorced when you were five and your mother raised you, Dad's fine financially and Mom's just getting by on social security. If you want to provide for a different outcome, you need to have a will.