TEXAS
INTESTATE
DISTRIBUTION OF
REAL PROPERTY
Philip C. Mani & Associates, P.C.
20726 Stone Oak Parkway, Suite 116
San Antonio, Texas 78258
www.philipcmani.com
TEXAS INTESTATE DISTRIBUTION OF REAL PROPERTY
Table of Contents
Table of Contents .....................................................2
MORE-ADVANCED POSSIBILITIES FOR DISTRIBUTION
INTRODUCTION
Per Capita, Per Stirpes and Per Capita with
Representation .........................................................................22
Who Inherits Real Property In Texas When There Is No Will?.3
Who Inherits Real Property When There Is No Will .................4
Per Capita with Representation..................................................23
What Is Separate Property and Community Property? ..............5
Separate Property – Unmarried with No Surviving Parents,
Surviving Siblings or Descendents of Deceased Siblings..........24
COMMUNITY PROPERTY
Adopted Children and Half Siblings ..........................................25
Community Property Distribution Basics .............................6
Separate Property – Unmarried with no Surviving Parents and
Surviving Full-Blood and Half-Blood Siblings .........................26
Married with No Children..........................................................7
Married with Children of the Marriage ......................................8
CONCLUSION
Married with only Children of the Marriage ..............................9
Conclusion .................................................................................27
Married with Children who are Not also Children of the
Surviving Spouse .......................................................................10
Texas Probate Code ...................................................................28
SEPARATE PROPERTY
Separate Property Distribution Basics...................................11
Married with Children................................................................12
Married with No Children..........................................................13
Married with One Deceased Parent ...........................................14
Married with No Parents and Siblings Only ..............................15
Married with No Living Family Members.................................16
Unmarried with Children ...........................................................17
Unmarried with no Children but with Surviving Parents...........18
Unmarried with One Surviving Parent and Siblings ..................19
Unmarried with No Surviving Parents and Surviving Siblings .20
No Surviving Spouse and No Children......................................21
2
Who Inherits Real Property
In Texas When There Is No Will?
This is determined by the Texas laws of intestate
succession and the laws of descent and
distribution applying to real property found in
Texas Probate Code, Sections 38 and 45.
3
Who Inherits Real Property
When There Is No Will

First: Determine whether the real property is
the Decedent’s community property or
separate property. The rules of who inherits
are different for each type of property.

Second: Determine (a) whether the Decedent
was married and (b) whether the Decedent had
children or descendents of children at the time
of death.
4
What Is Separate Property and
Community Property?
 Separate
Property is all property acquired while
single, or by gift, or by devise (through a Will), or by
inheritance (through intestacy), or purchased with
separate property funds while married.
 Community
Property is all other property.
 All
property acquired while married is presumed to be
Community Property, which may be expressly
controverted in a deed or other instrument conveying
the property, or by proving it was acquired as Separate
Property.
5
Community Property
Distribution Basics
(Texas Probate Code § 45)

If Decedent was married and had no children, Decedent’s surviving spouse inherits all
Community Property.

If Decedent died On or Before September 1, 1993, married and had children, Decedent’s
surviving spouse retains his/her one-half of the Community Property and the Decedent’s
children inherit the Decedent’s one-half of the Community Property.

If Decedent died After September 1, 1993, married and had only children of that marriage,
Decedent’s surviving spouse retains his/her one-half of the Community Property and inherits
the Decedent’s remaining one-half of the Community Property.

If Decedent died After September 1, 1993, married and had children other than, or in addition
to, the children with the surviving spouse, the surviving spouse retains his/her one-half of the
Community Property and the Decedent’s children inherit the Decedent’s one-half of the
Community Property.

If Decedent was survived by children but no surviving spouse, the Decedent’s children inherit
all of Decedent’s Property (see this in Separate Property Distribution Basics).
Examples are provided on the next several slides.
6
COMMUNITY PROPERTY
Married with No Children
Texas Probate Code § 45(a)(1)
8/8
Deceased Spouse
(1/2)
Surviving Spouse
(1/2)
Surviving Spouse
(1/2)
At death of Deceased Spouse, Surviving Spouse will own 8/8.
7
COMMUNITY PROPERTY
Married with Children of the Marriage
(Decedent died Before September 1, 1993)
8/8
Deceased Spouse
(1/2)
Child
(1/4)
Surviving Spouse
(1/2)
Child
(1/4)
At death of Deceased Spouse, Deceased Spouse’s one-half community property will be equally
divided between the children of the marriage.
8
COMMUNITY PROPERTY
Married with only Children of the Marriage
(Decedent died On or After September 1, 1993)
Texas Probate Code § 45(a)(2)
8/8
Deceased Spouse
(1/2)
Surviving Spouse
(1/2)
Surviving Spouse
(1/2)
At death of Deceased Spouse, Surviving Spouse will own 8/8 so long as the spouses had
only children of the marriage. If they have children, other than children of the marriage,
the Deceased Spouse’s children inherit all of Decedent’s property.
9
COMMUNITY PROPERTY
Married with Children who are Not also Children
of the Surviving Spouse
Texas Probate Code § 45(b)
Family Structure
Intestate Distribution
Deceased
Spouse
Second
Spouse
(Surviving
Spouse)
First
Spouse
Child
8/8
Child
Child
Child of
Deceased Spouse
(1/6)
Deceased
Spouse
Surviving
Spouse
(1/2)
Child of
Deceased Spouse
(1/6)
Child of
Deceased Spouse
(1/6)
10
Separate Property
Distribution Basics
Texas Probate Code § 38

If Decedent had children but no surviving spouse, the Decedent’s children inherit all of Decedent’s Separate
Property.

If Decedent was survived by a spouse and by children, Decedent’s surviving spouse inherits a life estate in 1/3
of the Separate Property, and the children inherit all of the Separate Property, subject to the surviving spouse’s
life estate.

If Decedent was survived by a spouse but had no children, Decedent’s surviving spouse inherits one-half of the
Separate Property and Decedent’s father inherits one-fourth of the Separate Property and Decedent’s mother
inherits the remaining one-fourth of the Separate Property.

If only one parent survives, that parent inherits one-fourth of the Separate Property and the other one-fourth is
inherited by Decedent’s brothers and sisters and/or their decedents, per stirpes (i.e. by their deceased parents’
share; referred to hereafter as “brothers and sisters” for simplicity).

If no brothers and sisters survive Decedent, then the surviving parent inherits one-half of the Decedents Separate
Property.

If there is no surviving parent, the brothers and sisters inherit one-half of the Decedent’s Separate Property.

“Children” or “Child” includes descendents of a predeceased child, per stirpes.
Examples are provided on the next several slides.
11
SEPARATE PROPERTY
Married with Children
Texas Probate Code § 38(b)(1)
8/8
Deceased Spouse
Surviving Spouse (Life Estate);
Children (Remainder)
(1/3)
Child
(1/2 of 2/3 Fee Simple)
Child
(1/2 of 2/3 Fee Simple)
12
SEPARATE PROPERTY
Married with No Children
Texas Probate Code § 38(b)(2)
Deceased Spouse
(8/8)
Surviving Spouse
(1/2)
Surviving Father
(1/4)
Surviving Mother
(1/4)
13
SEPARATE PROPERTY
Married with One Deceased Parent
Texas Probate Code § 38(b)(2)
Deceased Spouse
(8/8)
Surviving Spouse
(1/2)
Surviving Parent
(1/4)
Surviving Sibling
(1/8)
Surviving Sibling
(1/8)
“Surviving Sibling” also means descendents of predeceased siblings.
14
SEPARATE PROPERTY
Married with No Parents and Siblings Only
Texas Probate Code § 38(b)(2)
Deceased Spouse
(8/8)
Surviving Spouse
(1/2)
Surviving Sibling
(1/6)
Surviving Sibling
(1/6)
Surviving Sibling
(1/6)
15
SEPARATE PROPERTY
Married with No Living Family Members
Texas Probate Code § 38(b)(2)
Deceased Spouse
(8/8)
No Surviving Parents, Siblings,
or Descendents of Siblings
Surviving Spouse
(All)
16
SEPARATE PROPERTY
Unmarried with Children
Texas Probate Code § 38(a)(1)
Deceased
(8/8)
Child
(1/3)
Child
(1/3)
Child
(1/3)
17
SEPARATE PROPERTY
Unmarried with no Children but with
Surviving Parents
Texas Probate Code § 38(a)(2)
Deceased
(8/8)
Surviving Mother
(1/2)
Surviving Father
(1/2)
18
SEPARATE PROPERTY
Unmarried with One Surviving Parent and Siblings
Texas Probate Code § 38(a)(2)
Deceased
(8/8)
Surviving Parent
(1/2)
Surviving Sibling *
(1/4)
* Or descendents of siblings, per stirpes.
Surviving Sibling *
(1/4)
19
SEPARATE PROPERTY
Unmarried with No Surviving Parents
and Surviving Siblings
Texas Probate Code § 38(a)(3)
Deceased
(8/8)
Surviving Sibling *
(1/3)
Surviving Sibling *
(1/3)
* Or descendents of siblings, per stirpes.
Surviving Sibling *
(1/3)
20
SEPARATE PROPERTY
No Surviving Spouse and No Children
Texas Probate Code § 38(a)(4)
The Distribution of the Separate Property of an
individual dying with no surviving spouse and
no children or descendents of children, becomes
very fact specific. It is not possible to provide
the flowcharts depicting the mesne possibilities
and outcomes which result from Texas Probate
Code § 38 (a)(4). As a result, you should consult
an attorney or your Probate Code. However,
some basic distribution scenarios are included
below.
21
Per Capita, Per Stirpes and
Per Capita with Representation
Texas Probate Code § 43

Per Capita translates to mean “by head”

Per Stirpes means “through roots”

When the Deceased’s surviving heirs are all of the first order and equal
standing (i.e. children), they inherit per capita – in equal shares per the
number of children.

When the Deceased’s surviving heirs are of more than just the first order
and have different standing (i.e. children vs. grandchildren of a child who
predeceased the Deceased), the descendants inherit only such portion of
the real property as their parent, through whom they inherit, would be
entitled to if their parent were alive (called “per capita with
representation”).
22
Per Capita with Representation
Deceased
Predeceased Sibling
Predeceased Child of
Sibling Predeceased
Predeceased Sibling
Surviving Child
Of Predeceased Sibling
(1/6)
Surviving Sibling
(1/3)
Surviving Child
Of Predeceased Sibling
(1/6)
Grandchild of
Predeceased Sibling
(1/3)
23
SEPARATE PROPERTY
Unmarried with No Surviving Parents, Surviving
Siblings or Descendents of Deceased Siblings
Texas Probate Code § 38(a)(3)
Deceased
(8/8)
Predeceased Sibling
Predeceased Sibling’s
Child
(1/2 of 1/3)
Surviving Sibling
(1/3)
Surviving Sibling
(1/3)
Predeceased Sibling’s
Child
(1/2 of 1/3)
24
Adopted Children & Half Siblings

Adopted children inherit the same proportion from their adoptive parent as a natural born child.
However, where an adopted child is the Decedent, the intestate distribution scheme can require
the assistance of an attorney to determine.

Half Blood. Where the surviving siblings of decedent (or their descendants) are full-blood to
decedent, they inherit a full “share”, but where there are both full-blood siblings and half-blood
siblings, the half-blood siblings (or their descendants) inherit half as much as the full-blood
siblings.
To calculate a full-blood sibling’s share versus a half-blood sibling’s share, you multiply the
number of full-blood siblings by 2 (Example: 3 full-blood siblings x 2 = 6).
Then add that number to the number of half-blood siblings (Example: 1 half-blood sibling + 6 = 7).
The total is the denominator to use for your ownership (Example: each full-blood sibling is entitled
to 2/7, and the half-blood sibling is entitled to 1/7 of the Deceased’s real property).
An example is provided on the next slide.
25
SEPARATE PROPERTY
Unmarried with No Surviving Parents
and Surviving Full-Blood and Half-Blood Siblings
Texas Probate Code § 38(a)(2)&(3)
Deceased
(8/8)
Surviving
Full-Blood
Sibling *
(2/7)
Surviving
Full-Blood
Sibling *
(2/7)
* Or descendents of siblings, per stirpes.
Surviving
Full-Blood
Sibling *
(2/7)
Surviving
Half- Blood
Sibling *
(1/7)
26
These slides are a visual depiction of certain theoretical distribution
scenarios under the Texas Probate Code Sections 38 and 45; they are
not legal advice and should not be relied upon as a substitute for
legal advice. Always consult an Attorney licensed to practice law in
the State of Texas if you wish to determine who inherits real
property in Texas when there is no Will.
Philip C. Mani & Associates, P.C.
20726 Stone Oak Parkway, Suite 116
San Antonio, Texas 78258
www.philipcmani.com
27
Texas Probate Code
§ 38. Persons Who Take Upon Intestacy
(a) Intestate Leaving No Husband or Wife. Where any person,
having title to any estate, real, personal or mixed, shall die intestate, leaving
no husband or wife, it shall descend and pass in parcenary to his kindred,
male and female, in the following course:
1. To his children and their descendents.
2. If there be no children nor their descendants, then to his father
and mother, in equal portions. But if only the father or mother survive
the intestate, then his estate shall be divided into two equal portions,
one of which shall pass to such survivor, and the other half shall pass
to the brothers and sisters of the deceased, and to their descendants; but
if there be none such, then the whole estate shall be inherited by the
surviving father or mother.
3. If there be neither father nor mother, then the whole of such
estate shall pass to the brothers and sisters of the intestate, and to their
descendants.
4. If there be none of the kindred aforesaid, then the inheritance
shall be divided into two moieties, one of which shall go to the paternal
and the other to the maternal kindred, in the following course: To the
grandfather and grandmother in equal portions, but if only one of these
be living, then the estate shall be divided into two equal parts, one of
which shall go to such survivor, and the other shall go to the
descendant or descendants of such deceased grandfather or
grandmother. If there be no such descendants, then the whole estate
shall be inherited by the surviving grandfather and grandmother. If
there be no surviving grandfather or grandmother, then the whole of
such estate shall go to their descendants, and so on without end,
passing in like manner to the nearest lineal ancestors and their
descendants.
(b) Intestate Leaving Husband or Wife. Where any person having
title to any estate, real, personal or mixed, other than a community estate,
shall die intestate as to such estate, and shall leave a surviving husband or
wife, such estate of such intestate shall descend and pass as follows:
1. If the deceased have a child or children, or their descendants,
the surviving husband or wife shall take one-third of the personal
estate, and the balance of such personal estate shall go to the child or
children of the deceased and their descendants. The surviving husband
or wife shall also be entitled to an estate for life, in one-third of the
land of the intestate, with remainder to the child or children of the
intestate and their descendants.
2. If the deceased have no child or children, or their descendants,
then the surviving husband or wife shall be entitled to all the personal
estate, and to one-half of the lands of the intestate, without remainder
to any person, and the other half shall pass and be inherited according
to the rules of descent and distribution; provided, however, that if the
deceased has neither surviving father nor mother nor surviving brothers
or sisters, or their descendants, then the surviving husband or wife shall
be entitled to the whole of the estate of such intestate.
§ 45.
Community Estate
(a) On the intestate death of one of the spouses to a marriage, the
community property estate of the deceased spouse passes to the surviving
spouse if:
(1) no child or other descendant of the deceased spouse survives
the deceased spouse; or
(2) all surviving children and descendants of the deceased
spouse are also children or descendants of the surviving spouse.
(b) On the intestate death of one of the spouses to a marriage, if a
child or other descendant of the deceased spouse survives the deceased
spouse and the child or descendant is not a child or descendant of the
surviving spouse, one-half of the community estate is retained by the
surviving spouse and the other one-half passes to the children or descendants
of the deceased spouse. The descendants shall inherit only such portion of
said property to which they would be entitled under Section 43 of this code.
In every case, the community estate passes charged with the debts against it.
28