What Happens If a Will Is Not Filed in Probate in Texas?


Writing out a last will and testament ensures that assets go to designated heirs and beneficiaries after death. Those dying intestate (without a will) in Texas have assets and real and personal property distributed according to the state's laws of succession. According to Texas law, wills must be submitted for probate within four years of the decedent's death. Texas law also requires legal counsel for the probate process.

Unmarried Intesates

For intestate decedents dying unmarried, unlike those with a spouse at the time of death, Texas law treats real estate and personal property the same. If the decedent has children or grandchildren, all of the estate's assets pass to them. If there are no children or grandchildren but there are surviving parents, each parent receives half of the estate. If only one parent survives, the parent receives half of the estate and each sibling receives a proportionate share of the other half. If there are no surviving siblings but there are nieces and nephews, they receive the proportionate half. If there are no siblings or nieces or nephews, the surviving parent receives the entire estate. If no parents survive, siblings or surviving nieces and nephews receive the entire estate. If these relatives do not survive, the estate passes in the order of grandparents, aunt and uncles, and cousins. If there are no surviving relatives, the estate passes to the state of Texas.

Married Intestates

If the decedent had no children or grandchildren, the surviving spouse receives all personal and real property as well as community property. If the decedent had children or grandchildren who are also the children of the surviving spouse, the spouse also inherits all community property. If the children or grandchildren are not the descendants of the surviving spouse, the spouse receives half and the decedent's descendants inherit the other half.

Heirship Proceedings

Texas probate courts also determine heirship in intestacy cases. This is the legal determination of someone's relationship to the decedent for determination of next of kin for purposes of distributing the estate. In these proceedings, two witnesses who do not have an interest in the estate are required. Live testimony is not necessary. Witnesses living out of the area may submit a deposition to written questions; affidavits alone are insufficient.

Potential Heirs

Depending on circumstances in intestacy, various heirs may be considered. However, this does not include stepchildren under the Texas laws of succession. Posthumous heirs -- those conceived but not born when the decedent dies -- receive a portion of the estate if they are the decedent's children or grandchildren, but not nieces and nephews. Children born outside of wedlock are treated the same as children born within the marital relationship if the decedent is the mother, but must prove paternity if the decedent is the father. DNA evidence may be required by the court.

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