What If There Is No Will in Texas?

Understanding Heirship and Intestacy

When someone passes away without a valid will, they are said to have died intestate. For many families, this raises immediate and confusing questions:

Who owns the house now? Who has the right to sell it?

In Texas, the law provides a “default plan” for distributing property, but using that plan requires a formal legal process called a Determination of Heirship.

The “Default Plan”: Texas Intestacy Laws

If there is no will, the Texas Estates Code decides who inherits. The outcome depends heavily on whether property is classified as community property or separate property (see Texas Estates Code Chapters 201–203).

Community Property (Often the Family Home)

If all children of the deceased are also children of the surviving spouse, the spouse generally inherits the deceased’s share of the community home (Texas Estates Code §201.003).

The Blended Family Complication

If the deceased had children from a previous relationship, the surviving spouse keeps their own half of the home, but the deceased’s half passes to the children — not the spouse (Texas Estates Code §201.003(c)).

Separate Property

Separate property includes assets owned before marriage or inherited during marriage.

  • The surviving spouse may receive only a life estate in part of the property
  • The remainder interest passes to children, parents, or siblings (Texas Estates Code §§201.001–201.002)

Clearing Title: Two Common Paths

Affidavit of Heirship (The Informal Route)

An Affidavit of Heirship is a sworn statement recorded in the county deed records that identifies heirs based on testimony from disinterested witnesses.

Judicial Determination of Heirship (The Court Route)

This is a formal probate court proceeding governed by Texas Estates Code Chapter 202.

  • A case is filed in probate court
  • The judge appoints an Attorney Ad Litem (Texas Estates Code §202.009)
  • Witness testimony is presented
  • The court issues a Judgment Declaring Heirship

Why This Matters for Property

Until one of these processes is complete, the home’s title may not be clear enough for a sale to move forward.

Educational Note

This article is for general educational purposes only and does not constitute legal advice. Families should consult a licensed Texas probate attorney.