Wills vs. Intestate Succession: Why Letting the State Decide Is a Costly Mistake
- Caleb Patterson
- Oct 15
- 4 min read
Updated: 9 minutes ago
Many Texans feel uneasy about putting off their estate planning — and for good reason. A Last Will and Testament is more than a legal form; it’s peace of mind. It ensures your wishes are honored and your loved ones are spared unnecessary expenses and stress.
Yet, an estimated 60–75% of Americans die without a will, leaving their estates subject to intestate succession — a rigid set of default state rules that decide who inherits what.
Here’s what that means for you, what a will actually controls, and why failing to plan can be one of the costliest mistakes you make.
The Power (and Limits) of a Will
A will is the foundation of an estate plan, but it doesn’t control everything you own. It actually only controls property titled solely in your name or held as tenants in common. Many of your most valuable assets — like life insurance, retirement accounts, or bank accounts — are instead governed by contractual beneficiary designations that a will can’t change.
What a Will Does Not Control
Life insurance and annuity proceeds
Retirement accounts (IRAs, pensions, 401(k)s)
Joint tenancy property with rights of survivorship
Investment Accounts
If you’ve married, divorced, or remarried and haven’t updated your beneficiary designations with all your financial institutions and policyholders, your assets could unintentionally pass to an ex-spouse or distant relative instead of your loved one, even with a will. That’s why you need a comprehensive estate plan, and not just a boilerplate legal document.
Tip: Review your beneficiary designations at least once a year or after major life changes.
Learn more about how wills fit within a complete estate plan in our Texas Estate Planning Guide.
The High Cost of Dying Intestate
When someone dies intestate — without a valid will and any other estate plan — the state of Texas decides who inherits their property. Your loved ones cannot introduce testimony or written statements about your intentions; the court must follow statutory rules, no matter how unfair the result.
Here’s what happens next:
Probate Becomes Mandatory
Without a will or proper plan, every asset in your name must go through probate — the legal process of settling an estate.
Probate has been described as “a lawsuit you file against yourself, with your own money, for the benefit of your creditors.”
It’s complex, time-consuming, and expensive. Attorney fees, court costs, and administrative expenses are paid before any inheritance is distributed — often consuming a large share of the estate.
Having a custom estate plan can streamline or even avoid this process entirely, ensuring your estate is distributed quickly and efficiently.
Learn more about probate avoidance in our post: Avoiding Probate in Texas: How to Simplify the Process.
Your Privacy Disappears
Dying intestate doesn’t just cost money — it costs privacy.
When an estate enters probate, the accompanying documents become public record. Anyone can view an inventory of your assets and debts, how your assets are divided, what property you owned, and who will inherit it.
In some Texas counties, like Travis County, probate filings are even published online. That means your financial information could be visible to anyone who looks for it.
A properly structured trust or comprehensive estate plan can prevent this exposure and protect your family’s privacy.
Texas Intestate Succession Rules Are Rigid
Texas law distinguishes between community property (acquired during marriage) and separate property (owned before marriage or received as a gift or inheritance).
Here’s how the default rules apply:
Married with only mutual children: The surviving spouse inherits all community property.
Married with children from another relationship: The surviving spouse keeps their half of the community property; the deceased’s half passes to the children.
Separate property (personal property): The spouse receives one-third; two-thirds go to children or descendants.
Separate real property: The spouse receives a life estate in one-third, with the remainder to children or descendants.
These formulas rarely reflect real-world relationships — especially for blended families or unmarried partners. A customized estate plan ensures your assets go where you want them to, not just where the law directs.
Why So Many Texans Delay — and Why You Shouldn’t
People postpone creating an estate plan for many reasons:
“I don’t own enough to need one.”
“It’s too expensive or time-consuming.”
“I don’t want to think about dying.”
But avoiding the topic doesn’t make it disappear. Even modest estates benefit from having a plan. A will can:
Nominate a guardian for minor children.
Ensure sentimental items go to the right people.
Simplify probate and reduce costs for your loved ones.
It’s not about how much you have — it’s about protecting what matters.
Peace of Mind Through Preparation
Drafting a will is one of the simplest and most affordable ways to provide for your loved ones. It removes uncertainty, reduces family disputes, and keeps the court out of your personal affairs.
At The Patterson Law Firm, we help Texans design wills and estate plans that fit their lives — from young families to retirees. Whether you’re starting fresh or updating an outdated plan, we’ll ensure your wishes are legally sound and clearly documented.
Schedule your free 30-minute consultation today to create a plan that protects your family, preserves your privacy, and prevents costly mistakes.