Do You Need a Will in Texas? What Happens If You Don't Have One

Most people put off writing a will because it feels like a project for "someday": after the kids are older, after the house is paid off, after things settle down. A will matters less for how much you own than for who decides what happens to it, and who you leave in charge of your family, if something happens to you sooner than planned.

In Texas, if you die without a valid will, you don't get to make that decision. The state's intestacy statute makes it for you, and the result often surprises people.

What Happens If You Die Without a Will in Texas

When someone dies "intestate" (without a valid will), Texas's default inheritance rules decide who inherits, and the outcome depends heavily on your family structure. If you have no surviving spouse, your estate passes first to your children and their descendants, and only if none survive you does it move to your parents, then siblings, and outward through more distant relatives, in a fixed order set by statute. You don't get to choose who's skipped or favored.

Marriage complicates things further, especially with separate property. Under Texas law, if you're married with children and die intestate, your surviving spouse doesn't automatically inherit everything. For your separate personal property, your spouse gets one-third and your children split the remaining two-thirds. For your separate real estate, your spouse only gets a life estate in one-third, with the rest eventually passing to your children rather than your spouse outright. Blended families are often surprised by this split. Whether it feels fair depends on specifics, such as whose children they are and which property is separate or community, and those details are worth going through with an attorney instead of assuming the default rules will match your wishes.

Without a will, there's also no one you've named to serve as executor. The court appoints an administrator instead, which typically means more oversight, more bond requirements, and more cost than an estate with a validly executed will naming an independent executor.

What Makes a Will Legally Valid in Texas

Texas law sets out fairly specific formalities for a will to be enforceable. To make a will in Texas, you generally must be at least 18, or have been married, or be a member of the U.S. armed forces, and you must be of sound mind at the time you sign.

Beyond that, Texas law requires the will to be in writing, signed by you (or by someone else in your presence and at your direction), and attested by two credible witnesses, each at least 14 years old, who sign in your presence. There's one narrow exception: a will written entirely in your own handwriting, known as a "holographic" will, doesn't need witnesses at all, as long as the whole document is in your handwriting.

Holographic wills are legal in Texas, and the appeal is easy to see, since you need no witnesses and no appointment. They are also the wills most likely to end up contested or misread in probate court, because there's no attorney checking that the language actually does what you meant it to do, no witnesses to confirm your intent, and often no self-proving affidavit to streamline things. For anything beyond the simplest estate, a properly drafted and witnessed will is usually worth the extra step.

What a Will Can and Can't Do

A will lets you decide who inherits your property and lets you name an executor to carry out your wishes. If you have minor children, it also lets you name a guardian for them. What a will generally can't do on its own is avoid probate entirely, control assets that pass outside your estate (like a 401(k) with a named beneficiary, or property held in joint tenancy with right of survivorship), or take effect before you die. If probate avoidance or incapacity planning is your main goal, a will is usually one piece of a larger plan that may also include a trust, beneficiary designations, and powers of attorney.

The Four-Year Clock on Probating a Will

Texas law imposes a real deadline here: generally, a will can't be admitted to probate more than four years after the testator's death, unless the person applying can show they weren't at fault for the delay. Courts have allowed exceptions where someone reasonably believed probate wasn't necessary, but whether a particular delay qualifies turns on facts a general article can't weigh for you, such as what the applicant knew, when, and why they waited. Relying on that leniency without a lawyer looking at your specific timeline is risky. Some Texas probate courts have even adopted their own local administrative procedures specifically to handle these late-filed applications, which adds notice requirements and complexity that a timely filing avoids entirely (see, for example, Travis County Probate Court's administrative order on late will filings). A will that's sat unfiled for years is worth raising with an attorney sooner rather than later, since waiting doesn't make the underlying problem simpler.

Who Should Prioritize Getting a Will in Place

A few situations make having a current, validly executed will especially important:

• Parents of minor children. Without a will naming a guardian, a Texas court decides who raises your children if both parents are gone.
• Blended families. Intestacy's default split between a spouse and children from a prior relationship rarely matches what either side expects.
• Business owners. Without direction in a will (or a separate succession plan), your ownership interest passes through intestacy or probate like any other asset, potentially disrupting the business itself.
• Texas homeowners with real property. Real estate is often the asset most affected by intestate succession's spouse/child split described above.
• Anyone who's had a major life change. Marriage, divorce, a new child, or a move to Texas from another state are all good reasons to write a new will or review an existing one.

How We Can Help

Because wills and probate are governed by state law, this applies whether you're in Greater Austin or anywhere else in Texas. At ByLaw, we help Texas families put a will in place that actually reflects what they want: properly executed, self-proved, and coordinated with the rest of an estate plan where one makes sense. If you don't have a will, or haven't looked at yours since a major life change, we're happy to walk through your situation and tell you plainly what you do and don't need.

Frequently Asked Questions

Can I write my own will in Texas without a lawyer?+

Yes. Texas allows self-drafted attested wills and handwritten holographic wills. They can be legally valid if they meet the statutory formalities described above. The bigger risk is that DIY wills are more likely to contain language that doesn't do what you intended, miss assets or contingencies, or get executed incorrectly (wrong number of witnesses, missing signature) in ways that only surface after you're gone and it's too late to fix.

Does my spouse automatically inherit everything if I die without a will in Texas?+

Not necessarily. It depends on whether you have children, whether those children are also your spouse's children, and whether the property is community or separate. Texas intestacy rules can leave your spouse with less than full ownership of your estate. See the intestate succession discussion above.

Do I need to notarize my will in Texas?+

No. Notarization isn't required for a will to be valid in Texas. It's used for a self-proving affidavit, which is optional but can save your executor time and hassle by letting your will skip live witness testimony during probate.

How often should I update my will?+

Review it after any major life event: marriage, divorce, a new child or grandchild, a significant change in assets, or a move to Texas from another state. Even without a major event, it's worth revisiting every few years to make sure your named executor, guardian, and beneficiaries still reflect your wishes.

The content of this article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by use of this site. Laws, regulations, and individual circumstances change over time, so please consult an attorney for guidance specific to your situation.