What Happens if I Die Without a Will? Intestacy in Texas.

So, you may be wondering what happens if you die without having a will (not that you would ever let that happen). Well, it’s complicated . . . 

Does all of my property go to the state?

Almost certainly not. A surprising number of people seem to think that someone’s property goes to the state if they die without a will. This will only happen if you die without any heirs, so, for the vast majority of people, their property would pass to one or more of their relatives. Incidentally, the legal term for when your property passes to the state is “escheat,” which is one of my favorite legal words.

What does happen to my property, then?

It depends. Is it community property or separate property? Are you married or not? Do you have children? Are all of your children also the children of your current spouse or do you have a “blended” family? Like I said, it’s complicated. For a good summary of Texas intestate succession – what happens to your property when you die without a will – you can see this chart.

What is the difference between community and separate property, anyway?

There are a lot of rules that determine whether property is community or separate property, but a general summary is: if you owned it before marriage, it’s your separate property, but if you acquired it after marriage, it’s community property unless you acquired it by gift, inheritance, or devise. Of course, if you have a question about whether certain property is community or separate, you should consult an attorney.

What happens if I have minor children and die without a will?

That can be a bit of a mess. If the child’s other parent survives, they will retain custody of the child. If both parents die, then the court will appoint one of the grandparents as guardian of the child based on the best interests of the child. This can be a problem for a couple of reasons. One is that the grandparents are usually older and may not be the best choice to raise the child. Another is that, if there are multiple surviving grandparents, they may end up fighting over who gets named guardian, which is a nightmare scenario. All of which is another reason to have a suitable estate plan prepared by a capable attorney