What happens to your kids if you die without a will in Texas

Sarah and Mike lived in Austin with their two kids — Emma, 4, and Jack, 7. On a Tuesday in March, they were driving back from picking up groceries when a truck ran a red light at the intersection of East 6th and Chicon. They died at the scene. Neither of them had a will.

Here’s what happened to Emma and Jack over the next 18 months.

If you’re a parent in Texas without a will, this is what your kids would face. Walking through it honestly, with the actual law, is the clearest way to understand what a will actually does.

The first 72 hours

When both parents die simultaneously in Texas, emergency custody doesn’t default to any particular relative. Whoever is physically present — a grandparent who happened to be babysitting, a neighbor, a teacher at school pickup — steps in temporarily. If no responsible adult is immediately available, Child Protective Services gets involved. Not because anyone did anything wrong. In Texas, CPS is the state agency responsible for child safety in emergencies, and simultaneous parent deaths trigger that protocol.

Within 72 hours, a court hearing is scheduled to determine temporary custody. This is not a formality. It is a real hearing with a judge, and the outcome determines where Emma and Jack sleep for the next six to twelve months.

Here’s the difference a will makes at this exact moment: Texas Estates Code § 1104.053 gives strong preference to a guardian designated by the parents. If Sarah and Mike had written a will naming their sister Rachel as guardian, the court has Rachel’s name on day one. The hearing is short. Rachel goes home with Emma and Jack.

Without a will, the court has no preference to work from. It considers every eligible relative equally. Grandparents, aunts, uncles, adult siblings on both sides — they all have the same standing. The judge schedules follow-up hearings to sort it out. Emma and Jack go into temporary placement while that process runs.

The 72-hour window is the most concrete illustration of what a guardian designation in a will actually does: it gives the court a name before anyone has to fight about it.

The guardianship process, step by step

Once the emergency period ends, Texas law governs the formal guardianship process through Texas Family Code § 153 and Texas Estates Code § 1104. Here’s what that process actually looks like.

The court appoints a guardian ad litem — an attorney whose only job is representing the children’s interests, separate from any relatives who are petitioning for custody. The guardian ad litem interviews family members, visits potential placements, and reports back to the judge. Their fees come out of the estate.

Any eligible relative can petition for guardianship. Both of Sarah’s parents. Both of Mike’s parents. Mike’s adult brother. Sarah’s sister in Houston. All of them can file simultaneously, and all of their petitions are equally valid in Texas probate court.

When petitioners conflict, the court holds a contested hearing. The judge decides based on “the best interest of the child” under Texas Family Code § 153.002. That standard gives the judge broad discretion. Geography matters. Stability matters. The existing relationship with the children matters. The judge weighs all of it — without any input from Sarah or Mike, because they never wrote it down.

Cost: guardianship litigation in Texas typically runs $5,000 to $25,000 in legal fees, sometimes more in contested cases. That money comes from the estate — the same money that was supposed to support Emma and Jack through childhood.

One more thing: the private conversation at the holiday dinner where Sarah told her sister “if anything ever happens to us, take the kids” has zero legal weight in this process. No judge will hear about it. Verbal wishes aren’t admissible as guardian designations. The only thing that matters is what the will says.

The money — what actually happens to your assets

Texas is a community property state. That affects what your spouse and children inherit in ways most people don’t expect.

Texas Estates Code § 201.001–201.058 governs intestate succession. The rules depend on your specific family situation.

If you’re married with children who are all from this marriage: Your spouse keeps their half of the community property — they already owned it. Your half of the community property goes to your children, split equally. Your separate personal property: your spouse gets one-third, your children split two-thirds. Your separate real property: your spouse gets a lifetime right to use one-third, your children own the other two-thirds outright.

If you’re married with children from a previous relationship: This is where things break in unexpected ways. Your half of the community property goes entirely to your children — including any children from the prior relationship — not to your current spouse. The spouse gets nothing from community property if children from outside the current marriage exist. If you and your current spouse have $300,000 in savings accumulated during the marriage and you have a child from a prior relationship, your spouse gets nothing from your half of those savings. Your prior child gets it.

When minor children inherit money:It doesn’t go to your spouse to manage on the children’s behalf. Under Texas Property Code § 142, it goes into a court-managed trust until the children turn 18. A court-appointed trustee manages it. Your spouse doesn’t control it. A judge reviews it annually. On the child’s 18th birthday, whatever remains is handed over as a lump sum — no conditions, no age-appropriate distribution, no one to say wait.

Here’s what that looks like in numbers: Sarah and Mike had $400,000 in community property — savings, home equity, and retirement accounts combined. After both die, each half goes through the intestacy formula separately. The children’s shares land in court-supervised accounts. At 18, Emma receives roughly $200,000 in one transfer with no guidance and no conditions. That’s the default if no one wrote a will.

What a will changes

A Texas will changes all of the above. Here’s specifically how.

Guardian designation. Under Texas Estates Code § 1104.053, courts give strong preference to the guardian named by the parents. The hearing in the first 72 hours becomes a formality rather than an opening bid in a longer fight. The children go home with the right person immediately.

Trustee designation.Instead of a court-appointed trustee with annual judicial oversight, you name the person you trust to manage your children’s money. Your sister. Your brother. Someone who knows your kids, understands your values, and doesn’t need a judge to approve every decision.

Distribution ages. Most Texas parents who think about this choose 25 or 30 instead of 18, often with staggered distributions — 25% at 21, 50% at 25, the balance at 30. That prevents an 18-year-old from receiving a $200,000 lump sum without any guidance or structure.

Timeline and cost. Probating a valid Texas will takes 3 to 4 months using muniment of title proceedings for straightforward estates. Legal fees run $1,500 to $3,000. Compare that to 18 to 24 months and $5,000 to $25,000 without one.

What you can do in 3 minutes

The risk check at First Light asks 20 questions about your family, your assets, and your current documents. It takes about 3 minutes. At the end, you get a specific breakdown of what your family faces under Texas law — guardianship exposure, asset distribution, what changes if you have a blended family.

There’s no account required and no cost for the check.

If you want to generate a Texas-compliant will after you see your results, it’s $49. You name the guardian. You name the trustee. You set the distribution ages. The document is generated to Texas specifications and ready to print and sign.

Sources and statutes

The statutes referenced in this article are publicly available on the Texas Legislature Online at statutes.capitol.texas.gov.

• Texas Estates Code § 201.001–201.058 — intestate succession
• Texas Estates Code § 1104.053 — designation of guardian by parent
• Texas Family Code § 153.002 — best interest of the child standard
• Texas Property Code § 142 — management of property of a minor