Do I need a trust in Texas?

For most families with real estate, business interests, or estates above a modest threshold, a revocable living trust is a strong foundation. When properly funded, it generally avoids probate, keeps your affairs private, and simplifies administration for your loved ones. For smaller, simpler estates, a well-drafted will-based plan can be equally effective. The right choice depends on what you own, how it's titled, and your goals.

What is the difference between a will and a trust?

A will directs the distribution of your assets after death but must pass through probate. A revocable living trust holds assets during your lifetime and transfers them to beneficiaries at death without probate, offering greater privacy and simpler administration. Most comprehensive estate plans use both.

Does Texas have an estate tax?

Texas does not impose a state estate tax. However, estates above the federal exemption threshold may be subject to the federal estate tax. Proactive planning using trusts, gifting strategies, and other techniques can help reduce or defer that liability.

How often should I update my estate plan?

Plans should be reviewed every three to five years, or sooner after major life events such as marriage, divorce, the birth of a child, a significant change in assets, or the death of a named beneficiary. Tax law changes can also warrant a review.

What Happens If You Die Without a Will in Texas? (intestate succession rules)

If you pass away without a valid will in Texas, you are said to have died “intestate.” In that case, Texas law — not you — decides who inherits your property. Understanding how these rules work can be a powerful motivator to get your estate plan in place before it’s too late.

What Is Intestate Succession?

Intestate succession refers to the legal process by which a deceased person’s assets are distributed when they have no valid will. In Texas, this process is governed by the Texas Estates Code. The court appoints an administrator to manage the estate, and the state’s succession laws determine which relatives inherit — and in what proportions.

How Texas Distributes Your Property Without a Will

Texas intestate succession rules vary depending on whether you are married, have children, or have other surviving relatives. Here is how it generally works:

If You Are Married With Children

This is one of the most complex scenarios under Texas intestate law because the outcome depends on whether the children are also the children of the surviving spouse.

Community property (property acquired during the marriage): Your spouse keeps their half. Your half passes entirely to your children — not your spouse.

Separate property (property owned before marriage or received as a gift or inheritance): Your spouse inherits a life estate in one-third of your real property and outright ownership of one-third of your personal property. Your children inherit the rest.

If You Are Married Without Children

If you have no children and no surviving parents or siblings, your spouse inherits everything. However, if you have surviving parents or siblings, the distribution becomes more nuanced. Your spouse inherits all community property, but your separate personal property is divided: your spouse receives the first $60,000 (if the estate is more than $60,000) plus one-half of the remainder, and the balance goes to your parents or siblings. Your spouse also inherits one-third of your separate real property as a life estate, with the remainder going to your parents or siblings.

If You Are Single With Children

If you are unmarried but have children, your entire estate passes to your children in equal shares. If a child has predeceased you, that child’s share typically passes to their own children (your grandchildren) under the right of representation.

If You Are Single Without Children

Texas looks to your closest living relatives in the following order of priority: your parents (equally, or the surviving parent if one has died), then your siblings and their descendants, and further down the line to more distant relatives. If no relatives can be found, your estate may “escheat” to the State of Texas.

What Property Is Subject to Intestate Succession?

Not all property passes through intestate succession. Texas intestacy laws only govern property that would otherwise pass through a will — meaning probate assets. The following types of property generally pass outside of probate, regardless of whether you have a will:

Life insurance policies with named beneficiaries, retirement accounts (IRA, 401(k), etc.) with named beneficiaries, jointly owned property with right of survivorship, assets held in a living trust, and accounts with transfer-on-death (TOD) or payable-on-death (POD) designations.

What Intestate Succession Cannot Do

Dying without a will means the state makes critical decisions that only you should make. Intestate succession cannot name a guardian for your minor children, leave property to a close friend or unmarried partner, make charitable gifts, set up a trust for a child with special needs, or reduce estate taxes or probate costs through strategic planning. It also cannot reflect your personal wishes, values, or relationships. Under Texas law, an unmarried partner receives nothing — regardless of how long you were together.

The Heirship Process in Texas

When someone dies intestate in Texas, the court must often conduct a proceeding to determine heirs — sometimes called a “determination of heirship.” This is a formal legal proceeding that requires witnesses, sworn testimony, and court approval. It can be time-consuming and expensive, adding unnecessary stress on grieving family members. A well-drafted will (or a living trust) can largely eliminate this burden.

Take Control: Don’t Leave It to the State

Texas intestate succession laws exist to provide a default framework, but they are not a substitute for a thoughtful estate plan. Every person — regardless of age, wealth, or family situation — benefits from having a valid will and reviewing their beneficiary designations.

At Olive Branch Counsel, PLLC, we help Texas families create clear, personalized estate plans that protect what matters most. Whether you need a simple will, a trust, or a comprehensive estate plan, we are here to guide you through every step.

Contact us today to schedule a consultation and make sure your wishes — not Texas law — determine what happens to your estate.