Texas Inheritance Laws for Real Estate
In most cases, when a property owner dies, ownership of their real estate transfers according to their written instructions. If there are no valid written instructions, the Texas Laws of Inheritance will decide who inherits their real property.
Testate Death (With a Will)
If a person dies with a properly prepared Will, he or she dies Testate (with a Will). But the court must probate the Will, which means, in short, that a judge must approve it. This can be a costly process.
Good to know: If the deceased owner died Testate (with a Will), contact a probate attorney as soon as possible to discuss your options.
Note: To avoid probate, a property owner can sign, notarize, and file a document like a Transfer on Death Deed, Survivorship Agreement, Life Estate Deed, Lady Bird Deed or similar proper legal document. These documents designate who will receive the real property after an owner’s death. No probate is then required to transfer the property. Just proof of death, such as a death certificate or an Affidavit of Death.
Intestate Death (Without a Will)
If a person dies without leaving a properly prepared Will or similar document (such as a Transfer on Death Deed, Survivorship Agreement, Life Estate Deed, or Lady Bird Deed) he or she dies Intestate (without a Will). In such cases the Texas Laws of Inheritance designate the new owners of the property.
The following is a summary of those laws:
Married WITH Children or Other Descendants
If a deceased person was married at the time of death AND had children (including the children of any deceased children) the next step is to determine if the real property was the deceased person’s separate or community real property.
Separate Real Property
Most real property that was purchased prior to a marriage is considered Separate Real Property. This also includes property acquired during the marriage by gift or inheritance. There may be exceptions considered in a divorce.
Community Real Property
Community Real Property includes real property that was purchased during the marriage. There may be exceptions considered in a divorce.
Separate Real Property
Married with Children or Other Descendants
Community Real Property
Married with Children or Other Descendants
The inheritance rules for Community Real Property are different than the rules for Separate Real Property.
With Community Real Property, each spouse owns a 50% interest in all Community Real Property they purchased during the marriage. The marriage may be a formal or an informal (common law) marriage.
Good to know: Community Real Property may include the family home if it was bought during the marriage. All real property purchased during the marriage is presumed to be community property. There may be exceptions considered in a divorce.
If Biological CHIldren
If ALL of the deceased’s children are ALSO the children of the surviving spouse, the surviving spouse inherits the deceased’s 50% share, gaining full ownership of the community property. In order to gain 100% ownership, the surviving spouse MUST be the parent of ALL of the deceased person’s children.
Beware: If the deceased had children from another relationship, those children AND the children from the current marriage inherit the deceased’s 50% share. This is true even if the children are minors or estranged from their deceased parent or if their whereabouts are unknown.
If BLended family
In a blended family, where there is at least one child that is not the child of the surviving spouse, the deceased’s 50% share is equally divided among ALL of his or her children, including any deceased child’s children. This is true even if the children are minors or estranged from their deceased parent or if their whereabouts are unknown.
The surviving spouse retains his or her 50% interest in the real property and inherits NONE of the deceased spouse’s 50% interest in the property.
The surviving spouse owns 50% and the children own 50% of the Community Real Property in a blended family.
Note: Wills, Transfers on Death Deeds, Survivorship Agreements, Life Estate Deeds, and Lady Bird Deeds are all VERY important to protect the surviving spouse in a blended family.
Married Person With NO Children or Other Descendants
Separate Real Property
Married with No Children or Other Descendants
If the deceased person was married but had no children or children of any deceased children, the inheritance rules of the deceased person’s separate real property is complicated.
Community Real Property
Married with No Children or Other Descendants
Simple: If the owner had NO children or other descendants, all community real property passes to the surviving spouse.
Unmarried Person WITH Children or Other Descendants
Simple: Everything passes to the children and children of any deceased children 100% in equal shares. There is no determination of separate or community property since there was no marriage.
Unmarried Person With NO Children or Other Descendants
The source of this information is a Texas Descent and Distribution Chart produced by the Travis County Probate Court is located online at: https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf
Good to know: If a Texas real property owner wants to deviate from the Texas inheritance rules and wants his or her surviving spouse and/or children to avoid the expense of probate, he or she should consider signing, notarizing and filing a properly prepared Survivorship Agreement, Transfer on Death Deed, Life Estate Deed, or Lady Bird Deed.
Our fee to prepare any of these documents is $245.
FAQ
What happens to real estate when someone dies in Texas?
When a property owner dies in Texas, ownership transfers according to their Will or other legal documents they prepared before their death. If there is no valid Will or estate planning document, ownership is determined by Texas Inheritance Laws, which specify how the property passes to the surviving spouse, children, or other heirs.
What is the difference between Testate and Intestate death?
If a person dies Testate, it means that person had a valid Will that should be approved by a probate court. If a person dies Intestate, it means there is no valid Will, and the Texas Laws of Inheritance decide who inherits their property.
What is considered community property versus separate property in Texas?
Community property generally includes real estate purchased during a marriage. Separate property usually includes real estate that was owned before marriage or acquired through inheritance or gift during the marriage. The classification affects who inherits the property after death.
Who inherits real property when the deceased has a blended family?
If the deceased had children from another relationship, the surviving spouse keeps their own 50% share of community property, while the deceased’s 50% share is divided equally among all children. The spouse does not inherit the deceased’s portion of the community property in this case.
How can a property owner in Texas avoid probate?
A property owner can avoid probate by signing and recording documents such as a Transfer on Death Deed, Survivorship Agreement, Life Estate Deed, or Lady Bird Deed. These legal documents designate who will receive the property after death, making probate unnecessary.
Contact Us
If you have any questions, email attorney Scott Steinbach directly at scott@texaspropertydeeds.com. Or speak with him at 972-960-1850.