Texas Estate Planning
Estate planning in Texas is the set of decisions that determine who receives what a person owns, who has authority to act if that person can't act for themselves, and how much of that transfer runs through a probate court. A will controls property at death. A revocable living trust and a transfer on death deed can route specific assets around probate. A durable power of attorney and a medical directive control who can act, and how, while the person is alive but incapacitated. None of these documents does the others' job, and skipping one doesn't leave a gap so much as hand that decision to a default rule instead of a personal choice.
That default matters more than most people assume. Texas is a community-property state, and its intestate succession statute — the rules that apply automatically when someone dies without a valid will — splits an estate differently depending on whether the property is separate or community and on who survives. The sections below cover what that default does, what a Texas will actually has to look like to be valid, and how the will, trust, deed, and power-of-attorney pieces relate to each other. Every topic below has its own dedicated page.
Texas Estate Planning Topics
Available now:
- Can a Trust Own an LLC?
- Texas Land Trust
- Texas Wills and Probate
- Dying Without a Will in Texas
- Texas Transfer on Death Deed
- Texas Power of Attorney and Directives
- Texas Revocable Living Trust
What Happens Without a Will in Texas
Dying without a will — intestate, in the statute's term — doesn't mean there's no plan. It means Texas's intestate succession statute, Estates Code Chapter 201, becomes the plan, and it doesn't sort property the way most people guess. The chapter treats separate property and community property as two different questions, decided by two different sections.
For separate property — generally, what a person owned before marriage or received individually by gift or inheritance — Estates Code Section 201.002(b) gives a surviving spouse only one-third of the separate personal property and a life estate in one-third of the separate real property when the deceased left children; the children take the rest, including the remainder interest in that real property once the life estate ends. A surviving spouse who assumes they inherit a deceased spouse's separate property outright is often wrong under this default.
Community property, which is most of what a married couple accumulates during the marriage, follows Section 201.003 instead. If every surviving child is also a child of the surviving spouse, the surviving spouse takes the entire community estate. But if a surviving child is not also the surviving spouse's child — a child from an earlier relationship, for example — the deceased spouse's one-half interest in the community estate bypasses the surviving spouse and passes directly to that child instead.
The full descent tables, including what happens when there's no surviving spouse at all, are on Dying Without a Will in Texas.
What Makes a Texas Will Legally Valid
Not everyone in Texas has the legal capacity to make a will. Estates Code Section 251.001 limits that right to a person of sound mind who, at the time the will is made, is 18 or older, is or has been married, or is a member of the U.S. armed forces, an armed forces auxiliary, or the U.S. Maritime Service.
A valid will also has to satisfy a specific execution formula under Section 251.051: it must be in writing, signed by the testator (or by someone else in the testator's presence and at the testator's direction), and attested by two or more credible witnesses who are at least 14 years old and who sign their own names in the testator's presence. Skip any one of those three elements and the document risks being unenforceable exactly when it matters most — after the testator can no longer fix it.
Self-proving affidavits, holographic wills, and the full execution and probate mechanics are covered on Texas Wills and Probate.
Wills, Trusts, Deeds, and Powers of Attorney Solve Different Problems
It's tempting to treat these documents as options to pick one from, but they answer different questions. A will only controls property at death, and only property that doesn't already have a beneficiary designation, joint owner, or trust behind it — which is why a will alone doesn't avoid probate. A transfer on death deed moves one specific piece of real property outside probate by naming a beneficiary directly on the deed. A revocable living trust can do the same for a broader set of assets, but only for assets actually retitled into the trust's name — an unfunded trust protects nothing. None of the three has anything to do with incapacity.
A durable power of attorney and a medical directive cover the opposite problem: what happens while the person is alive but unable to make decisions, not what happens after death. Without one, decisions a spouse or adult child might assume they can make, like signing on a bank account or consenting to a medical procedure, can require a court-appointed guardianship instead. See Texas Power of Attorney and Directives for what each document actually authorizes.
Most complete plans use more than one of these tools, and for owners who hold a business or investment property, the entity structure is part of the same plan — an LLC's operating agreement can control what happens to a membership interest at death or incapacity independently of what the will says. See LLC for Estate Planning for how the two overlap.
Related Texas LLC Resources
A number of closely related estate-planning topics are already live on this site: