Probate Without a Will in Texas: Who Inherits, What Gets Filed, and How Long It Takes

Person in white shirt protecting a small white house model with hands over a desk with coins, keys, and a toy car.

When someone dies in Texas without a will, the state has already decided who inherits. What it hasn’t decided is how the family proves it. Banks, title companies, and county clerks won’t take a relative’s word that they’re the rightful heir. Something has to be filed, and choosing the right probate path when there’s no will can mean the difference between a few weeks and a year or more in court.

Who Inherits Under Texas Law

Texas divides property differently depending on whether it is community property, generally what a married couple acquired during the marriage, or separate property, meaning what one spouse owned before marriage or received by gift or inheritance. The Texas Estates Code sets the shares.

Community property:

  • If all of the deceased spouse’s children are also the surviving spouse’s children, the surviving spouse keeps all of the community property.
  • If the deceased had a child from another relationship, the deceased’s half of the community property passes to their children, not the spouse.

Separate property, when there is a surviving spouse and children:

  • The spouse receives one-third of the personal property and a life estate in one-third of the real estate.
  • The children receive everything else.

Separate property, when there is a surviving spouse but no children:

  • The spouse receives all personal property and half of the real estate.
  • The other half of the real estate goes to the deceased’s parents, siblings, or their descendants. If there are none, it goes to the spouse.

If there’s no spouse, everything goes to the children. If there are no children, it passes to parents, siblings, and more distant relatives in a set order. Stepchildren who weren’t legally adopted don’t inherit.

These rules surprise many blended families. A second spouse often assumes the house is theirs, only to learn that the deceased’s adult children from an earlier marriage now own part of it.

What Gets Filed: Four Common Options

Without a will, Texas families usually choose among four procedures:

  1. Small estate affidavit. If the estate, not counting the homestead and certain exempt property, is worth $75,000 or less, the heirs may file a sworn affidavit with the court instead of opening a full administration. It can transfer a homestead, but generally not other real estate.
  2. Affidavit of heirship. For real estate, heirs can record an affidavit identifying the family members with the county clerk, without going to court. The form and recording requirements were updated in September 2025. Some title companies still won’t rely on one alone for a sale.
  3. Determination of heirship. A court proceeding that produces a judgment naming the legal heirs. The court appoints an attorney to represent unknown heirs, and two witnesses who knew the family testify about the deceased’s marriages and children.
  4. Administration. When debts must be paid, assets must be sold, or someone needs legal authority to act for the estate, the court appoints an administrator alongside the heirship determination. If all of the heirs agree, the administration can usually be independent, with far less court supervision.

How Long It Takes

Timelines vary by county and by how cooperative the family is, but in general:

  • Small estate affidavit: it can’t be filed until 30 days after death, and is often approved within one to three months.
  • Affidavit of heirship: it can be recorded quickly, but it becomes stronger evidence over time. Some buyers and lenders want it on record for five years before relying on it alone.
  • Heirship determination: usually several months, because of notice requirements, the attorney ad litem’s investigation, and court scheduling.
  • Administration: often six months to a year or more, depending on creditor claims, property sales, and any disputes among the heirs.

Don’t wait too long. An application for administration generally must be filed within four years of the death. Heirship can be established later, but evidence and witnesses become harder to find with every year.

Planning Ahead Keeps Your Family Out of This Process

Every step described above happens because there was no will. A properly drafted will, and in many cases a trust or a transfer on death deed, lets your family skip the heirship hearing, the attorney ad litem, and the arguments over who owns the house. Powers of attorney matter too, because a plan that only works after death leaves your family without authority if you become incapacitated first. We explain the options in our article on durable vs. non-durable powers of attorney in Texas.

Wooden courthouse model labeled "Probate Law," red house cutout, and judge's gavel on dark surface.

Get Help With an Estate That Has No Will

Whether you’re settling a loved one’s estate in New Braunfels, Comal County, or the surrounding area, or making sure your own family never has to, the right first step depends on what the estate holds and who the heirs are. Carroll Law Group PLLC can help you choose the fastest path and file it correctly. Schedule a free initial consultation to discuss your situation today.