No Will in Texas: Who Inherits the House & What to Do

Losing a family member who died without a will is hard enough — figuring out who legally owns the house after the funeral can feel impossible. Texas has a specific set of rules for this exact situation, and once you know how those rules apply to your family, the path to selling or transferring the house gets much clearer.

What “Dying Without a Will” Means in Texas

When a Texas resident dies without a valid will, they are said to die intestate. Texas Estates Code Chapter 201 (the intestate succession statute) decides who inherits — not the family, not the court’s preference, not what your dad “always said” he wanted.

The court does not redistribute the estate. It applies a fixed formula based on:

• Whether the deceased was married at death
• Whether there are surviving children
• Whether those children are also children of the surviving spouse
• Whether the property is separate or community property

That last distinction — separate vs. community — is the part most families miss, and it changes the math dramatically.

Separate vs. Community Property at Death

Texas is a community property state. Property a married person owns is presumed to be community property unless proven otherwise.

• Community property is anything acquired during the marriage, with money earned during the marriage
• Separate property is anything owned before marriage, inherited individually, or received as a gift to one spouse

For the family home, the question is usually: was the house bought during the marriage with marriage-era income? If yes, it is community property. If the deceased owned the house before marrying, or inherited it from a parent, it stays separate.

Who Inherits the House With No Will

Here is how Texas intestate succession applies to a house, depending on the family situation.

Married, all children are with the surviving spouse — community property home

The surviving spouse inherits the entire community property home. The children of the marriage do not inherit a share at death — they inherit later, from the surviving spouse.

This is the cleanest scenario.

Married, at least one child is from outside the marriage — community property home

The surviving spouse keeps their own one-half of the community property. The deceased’s one-half passes to all of the deceased’s children (from any marriage) in equal shares.

That means the surviving spouse ends up owning the house with a group of stepchildren as co-owners. This is where most disputes happen. Selling requires all owners to sign.

Married — separate property home

The split for a separate property home is different. The surviving spouse gets a life estate in one-third of the home (the right to use it for life), and the children inherit the rest. If there are no children, parents and siblings of the deceased can end up as co-owners.

A common shorthand: if the deceased had kids from a prior relationship, the surviving spouse rarely owns the house alone after death. Plan accordingly.

Single Person With No Children

If the deceased was single and had no children, the home passes in this order:

1. Parents — split equally if both are alive
2. Siblings — if both parents predeceased, the siblings inherit
3. Grandparents and their descendants — if no closer relatives
4. State of Texas — if no relatives can be found (very rare)

Half-siblings inherit a half-share compared to full siblings. Stepchildren who were never legally adopted do not inherit by intestate succession in Texas.

Why “Just Knowing” Who Inherits Isn’t Enough

Family members often know exactly who should inherit. The problem is that a title company, lender, or buyer will not take your word for it. To sell, refinance, or transfer the home, you need a legal record that shows who the heirs are.

Without a will, Texas gives families three main tools to create that record:

1. Affidavit of Heirship

A sworn statement from two disinterested witnesses (people who knew the family but do not inherit) describing the deceased’s family tree. Filed in the county deed records.

Best for: simple family situations, smaller estates, properties that will not be sold immediately. Many title companies accept it after the affidavit has been on record for 4+ years, sometimes sooner depending on the underwriter.

See our full guide on the Affidavit of Heirship in Texas for the form, the filing process, and underwriter quirks.

2. Determination of Heirship Proceeding

A court action where a probate judge identifies the heirs and signs an order naming them. Filed in the probate court of the county where the deceased lived.

Best for: any sale that needs to close quickly, blended families, disputes, or any title company that refuses an Affidavit of Heirship. The court appoints an attorney ad litem to represent unknown heirs and issues a binding Judgment Declaring Heirship.

Typical cost: $2,500–$5,000. Typical timeline: 2–4 months.

3. Small Estate Affidavit

A streamlined court filing for estates worth $75,000 or less (not counting the homestead and exempt property). Texas law was updated in 2024 to make this affidavit work for the homestead in more situations, which helps a lot of families.

Best for: modest estates with one main asset and clear heirs. See our Small Estate Affidavit guide for the full rules and a step-by-step walkthrough.

What Title Companies Actually Want

Title companies are the gatekeepers for any sale. Their underwriters decide whether the chain of title is clean enough to insure. For a no-will sale, expect them to ask for:

• A certified death certificate
• An Affidavit of Heirship or Judgment Declaring Heirship
• ID for every heir
• Sometimes: marriage and divorce records to confirm the spouse’s status
• Sometimes: birth certificates for children, especially from prior marriages

Underwriters vary. Some accept an Affidavit of Heirship right away on small estates. Some require the affidavit to be on file for 4+ years (the “4-year rule” some underwriters apply by custom, not statute). Some require a court-ordered determination of heirship before they will insure.

That variability is why we always recommend the family check with a probate-experienced title company before picking the tool. Choosing the wrong path can cost weeks.

If you are staring at a Texas house and the family has no will, no clear plan, and no idea which tool to use, that is exactly what we help with. We work with heirs across Texas to identify the right title path, line up a realistic timeline, and connect with attorneys when court filings are needed. Reach out through our contact form and we will respond within one business day.

Common No-Will Complications

Real families rarely fit the textbook fact pattern. Watch for these:

Blended families

A second marriage with kids on both sides almost always creates co-ownership at death. The surviving spouse owns half. The deceased’s kids — from the current and prior marriage — split the other half. If those relationships are tense, mediation before listing the home saves enormous legal fees later.

Estranged children

A child the deceased had not spoken to in 30 years still inherits. The law does not care about the relationship. Track them down before listing, or the sale stalls at closing.

Adopted and biological children

Legally adopted children inherit the same as biological children. Stepchildren who were never adopted do not inherit, even if they were raised by the deceased. This is one of the harshest results of intestate succession.

Children born outside marriage

Texas treats children born to unmarried parents as legal heirs of both parents, but proof of paternity may be required. DNA testing, acknowledged paternity, or a prior court order all work.

Heirs out of state or out of the country

Out-of-state heirs can sign by power of attorney or mail-back notarization with apostille. International heirs add 30–60 days to the timeline. See our guide on the out-of-state executor selling Texas probate property for the logistics.

A Realistic Timeline With No Will

For families using a court-ordered determination of heirship, the title side takes 3–4 months. For Affidavit of Heirship cases with a willing underwriter, the same step can take 4–6 weeks.

When to Talk to an Attorney

You can usually file an Affidavit of Heirship without an attorney. You can usually file a Small Estate Affidavit without an attorney in straightforward cases. You should always use an attorney for a determination of heirship or any contested matter.

If you need a probate attorney referral in your county, we keep a network of vetted attorneys across Texas. See our find a probate attorney page or skim our Travis County probate guide and Harris County probate guide for local court details.

Bottom Line

Dying without a will in Texas is common — and Texas has a clear set of rules to handle it. The family does not lose the house. The state does not take the home. The job is to identify the legal heirs, pick the right title-clearing tool (Affidavit of Heirship, Small Estate Affidavit, or Determination of Heirship), and get clean title before listing. That is mechanical work, not a crisis. With the right paperwork, most no-will Texas homes can be sold within 3–6 months of the owner’s death.