Understanding the Texas Intestate Process
When someone passes away without a valid will in Texas, they are said to have died intestate. This means their estate—everything they owned—is distributed according to Texas intestacy laws rather than their personal wishes. While this process ensures that assets pass to heirs in a structured way, it can be time-consuming, emotionally difficult, and expensive for surviving loved ones. Two common elements in intestate cases are the use of affidavits of heirship and the appointment of a guardian ad litem. Understanding how these work can help families navigate this often complex legal terrain.
What Happens When Someone Dies Without a Will?
Without a will, Texas law determines who inherits the estate based on a set formula. Typically, the closest living relatives—spouses, children, parents, or siblings—will be the heirs. However, the exact distribution depends on whether the deceased was married, had children, or owned property jointly.
Unfortunately, without clear written instructions, family members are sometimes left guessing about what the deceased would have wanted. Disputes over property can arise, especially if there are blended families, estranged relatives, or complex assets like real estate or business interests.
Affidavit of Heirship: A Tool for Transferring Property
In some intestate cases, especially when no formal probate is opened, an Affidavit of Heirship can be used to establish who the legal heirs are. This is a sworn legal document completed by individuals (often family members or long-time friends) who are familiar with the family history of the deceased.
The affidavit typically includes:
The deceased’s full name and date of death
A list of known heirs
Statements confirming the family relationship and that the deceased died without a will
Descriptions of the property involved, especially real estate
Once signed and notarized, the affidavit is filed in the county property records. Over time, it can help heirs demonstrate ownership, though some financial institutions or title companies may still require probate or additional documentation for certain transactions.
It’s important to note that affidavits of heirship are best suited for simpler estates—usually those involving only real estate and no disputes between heirs. They are not a replacement for probate but can be a helpful tool for transferring title to property.
Guardian ad Litem: Protecting Unknown or Minor Heirs
In more complex intestate cases—especially those involving minor children, heirs who can’t be located, or potential disputes—a Texas probate judge may appoint a guardian ad litem. This is a neutral third-party attorney whose job is to represent the best interests of certain heirs during the probate process.
For example, if some heirs are underage or mentally incapacitated, they cannot legally advocate for themselves in court. The guardian ad litem steps in to ensure their rights are protected and that any settlement or distribution of the estate treats them fairly.
Similarly, if there is uncertainty about whether all heirs have been identified, the guardian ad litem can investigate and advise the court accordingly. This can help prevent future legal claims or contests to the estate by missed or unknown relatives.
While the appointment of a guardian ad litem adds another layer to the process, it’s an important safeguard—especially when the stakes are high or the family situation is complicated.
Why Having a Will Matters
The intestate process is not only more complicated—it’s more stressful for grieving families. The added steps, legal costs, and time delays can create unnecessary hardship. That’s why having a valid will in place can make all the difference. With a will, you can name your beneficiaries, appoint an executor to manage your estate, and avoid many of the uncertainties and court interventions required under intestacy.
In Summary
When someone dies without a will in Texas, the estate enters the intestate process. Affidavits of heirship and guardians ad litem are tools used to determine heirs and protect their interests. While the legal system provides these safeguards, they often lead to delays and emotional stress for families. Creating a will offers a clearer, simpler path—and peace of mind that your wishes will be honored.
