There’s no Will. What now?

As you likely know, a Will is a document that instructs how your property should be distributed, and how your estate’s affairs should be managed, after you pass away. If a family member has passed away without a Will, then we have no such instructions. If there are no instructions, then what happens to your loved one’s property, and to your family?

First of all, don’t worry. The law protects surviving family members. Specifically, the Texas Estates Code provides “Rules of Descent and Distribution,” which describe who the lawful heirs are as well as their share in the estate’s assets.

These rules work perfectly sometimes. For example, if someone passes away and is survived by only a spouse (and no children), the surviving spouse will be the only lawful heir and will inherit everything (in most circumstances).

Sometimes, though, the rules give rise to troubling circumstances, and unfortunate results. For example, if someone passes away and is survived by a spouse, by children from a previous marriage, and by children from the current marriage, then the children have a right to all of the deceased spouse’s community property—typically one half of the entire marital estate. As you can imagine, this could cause a great deal of conflict. Sometimes the stepchildren want to keep their share in the property, which can make things difficult for the surviving spouse. Sometimes, fortunately, the surviving children are cooperative and agree to return their share of the estate to the surviving spouse.

Please note, however, that even if those rules somehow work tolerably well for your situation, probating an estate without a Will is much more time-consuming and expensive. It requires the identification of heirs, the consent of heirs, the identification of an appropriate estate administrator and appointment thereof, and all of the additional regular probate procedures. (If you’re interested in learning more about this, please read our article about formal heirship determination.)