Robert Castillo was the kind of man who meant to get a will. He had mentioned it to Elena, his wife of nine years, probably a dozen times. After tax season. After this project wraps up. Once the kids are a little older. Robert was 61, a self-employed general contractor with a house in McKinney, a work truck, a business bank account, and a teenage son, Alex, who played varsity soccer at McKinney North.
He also had two adult children from his first marriage — Marcus, 34, living in Garland, and Diane, 31, in Mesquite. Robert had a cordial relationship with both of them. Elena had met them four times in nine years, mostly at Christmas.
Robert died of a heart attack on a Tuesday in October. No warning. No will.
Elena called a family friend who was a paralegal and asked what she needed to do to transfer the house into her name. The answer she got was not what she expected. It never is.
The McKinney home — the one she had lived in for nine years, paid the mortgage on every month alongside Robert, raised Alex in — was not entirely hers. Under Texas intestacy law, Robert's half of that house had passed, at the moment of his death, to his three children: Marcus, Diane, and Alex. Not to Elena. To them.
Elena owned fifty percent of her own home. Three people — two of whom she barely knew — owned the other fifty percent.
The Assumption That Destroys Texas Families
Most Texans operate on a belief that is completely wrong: that if you die without a will, your spouse automatically inherits everything. It sounds logical. It is how many people assume the law works. It is not how Texas law works.
Texas is a community property state, but Texas intestacy law treats community property in a way that surprises nearly every family that encounters it. Under Tex. Estates Code § 201.003, a surviving spouse inherits the deceased spouse's half of the community estate — but only if all of the deceased spouse's children are also the surviving spouse's children.
The moment one child exists who is not a child of the surviving spouse, that protection disappears entirely. The decedent's entire half of the community estate passes to the children — all of them, including any children from the prior relationship — and the surviving spouse receives nothing from that portion.
Robert had three children. One — Alex — was Elena's son too. Two — Marcus and Diane — were not. That was enough. Under § 201.003, Robert's half of every piece of community property they owned together passed to Marcus, Diane, and Alex in equal shares. Elena kept her own half. She lost Robert's.
How Texas Law Actually Divides an Intestate Estate
To understand what happens when someone dies without a will in Texas, you need to understand the difference between community property and separate property — and then apply the intestacy rules to each category separately.
Community Property
Community property is property acquired during the marriage. The McKinney home Robert and Elena bought together in 2017 was community property. Robert's business checking account — funded by work he did during the marriage — was community property. Elena already owned her half of all of it. The question was who got Robert's half.
Under § 201.003: if a decedent has any children who are not children of the surviving spouse, the surviving spouse inherits none of the decedent's community property. It goes to the children.
Elena got zero of Robert's community property share.
Separate Property
Separate property is property owned before the marriage or received as a gift or inheritance during the marriage. Robert's work truck, which he had bought in 2013 before he met Elena, was separate property. So was a small parcel of land his father had left him in Grayson County.
Separate property follows different rules under Tex. Estates Code § 201.002:
- Separate personal property (the truck, cash, tools): surviving spouse receives one-third; children share two-thirds.
- Separate real property (the Grayson County land): children inherit all of it, but the surviving spouse receives a life estate in one-third — meaning Elena could use one-third of the land until she died, but could not sell it, and it would pass to the children upon her death.
Elena got one-third of the truck and a life estate in one-third of the Grayson County parcel. Marcus, Diane, and Alex split the rest.
The Community Home: A Partition Problem
Here is where Robert and Elena's situation became truly painful. The McKinney home was worth approximately $480,000. Elena owned half — $240,000. Robert's half — another $240,000 — passed equally to his three children. Each child owned roughly $80,000 worth of the home.
Elena could not simply stay in the house. She did not own it outright. She was a co-owner with two adults who had every legal right to demand a partition sale — to force the property to be sold so they could receive their share in cash. Under Tex. Prop. Code § 23.001, a co-owner who cannot agree on how to divide jointly-owned property can petition a court to order a partition, which in most cases means a forced sale.
Marcus and Diane did not want to force Elena out. But they did want their money. Their own attorney advised them that they were entitled to it.
The Determination of Heirship: The Most Expensive Paperwork in Texas Probate
Before anyone could do anything — sell the house, access the bank account, transfer the truck — Elena had to establish, legally, who Robert's heirs were. Because Robert had no will, there was no probate instrument that identified his beneficiaries. The court had to determine that from scratch.
This process is called a determination of heirship, governed by Tex. Estates Code Chapter 202. It requires filing an application with the probate court (in Collin County, that is the Collin County Courts at Law), serving notice on all interested parties, and holding a formal hearing at which two disinterested witnesses testify about the decedent's family history under oath (§ 202.051).
The court also appoints an attorney ad litem (§ 202.009) — an independent attorney whose job is to represent any unknown or unlocated heirs. That attorney charges fees that become a court cost. In a straightforward case, the attorney ad litem might bill $1,500 to $3,000. In a contested case, far more.
The determination of heirship alone — just establishing who inherits before any assets can move — typically takes three to five months in Collin County and costs $4,000 to $8,000 in attorney fees and court costs. This is the mandatory first step for any intestate estate that needs court administration.
Letters of Administration: Not the Same as Letters Testamentary
After heirship is determined, the court can appoint an administrator to manage the estate. This is the intestate equivalent of an executor. But there is a meaningful difference.
When you name an executor in a will, that person derives authority from the will itself — a legal document you created and signed. Banks, title companies, and financial institutions are accustomed to accepting letters testamentary from named executors. The process is familiar.
An administrator appointed by a court in an intestate case is a different matter. Under Tex. Estates Code §§ 301.001–301.002, the administrator must typically post a surety bond (§ 305.101) — a financial guarantee that they will properly manage the estate — unless all heirs consent to waive it. Bonds cost money. They require insurance underwriting. They add time.
Some financial institutions treat intestate administrators with more caution than named executors. Title companies, when asked to insure a deed signed by an intestate administrator, apply stricter scrutiny. The process is slower, more expensive, and more uncertain at every step.
Cheaper Alternatives — When They Actually Apply
Questions about probate? A WG Law attorney can walk you through your options.
Not every intestate estate requires the full determination of heirship and administration process. Texas offers two lower-cost options, each with strict eligibility requirements.
Small Estate Affidavit (Tex. Estates Code § 205.001)
If the estate's total assets — excluding the homestead and exempt property — are worth $75,000 or less, and there is no pending probate, heirs can file a small estate affidavit to collect assets without court supervision. The affidavit is signed by all heirs and filed with the court clerk. It does not require a formal hearing.
This is a genuine shortcut when it applies. The problem is that most families who own a home in Collin County or Tarrant County will exceed the $75,000 threshold immediately. The small estate affidavit is most useful for intestate estates with modest bank accounts, personal property, and no real estate.
Affidavit of Heirship (Tex. Estates Code § 203.001)
An affidavit of heirship is a sworn statement — signed by two people with personal knowledge of the decedent's family — that identifies the heirs and is filed in the county deed records. It does not require court approval and can, over time, establish title to real property.
The catch: most title insurance companies will not insure a property transferred by affidavit of heirship until it has been on record for at least ten years. If a family needs to sell, refinance, or use the property as collateral within that window, the affidavit of heirship creates serious problems. It is a limited tool, not a substitute for probate.
The Four-Year Clock Still Ticks
One more complication for intestate estates: if a will is later discovered — in a drawer, a safe deposit box, with a relative — Texas imposes a four-year deadline from the date of death to probate it (Tex. Estates Code § 256.003). After four years, a will can only be filed as a muniment of title, which is available only for real property and only when there are no debts other than a mortgage.
Families who begin an intestate administration and later find a will are sometimes too late to use it. The determination of heirship they completed — and paid for — may need to be redone or may conflict with the will's provisions. Every delay in addressing an intestate estate creates more risk that the legal options narrow.
What Happened to Elena
Elena's case resolved after fourteen months. She hired a McKinney probate attorney who filed the determination of heirship, opened an administration, and negotiated a buyout of Marcus and Diane's interests in the home. The two adult stepchildren were reasonable — they did not want to upend Alex's life or force Elena from the house where her teenage son lived. But they were entitled to their share, and their attorney made sure they received it.
Elena paid $48,000 to buy out Marcus and Diane's combined interest in the home. She paid $27,000 in attorney fees across fourteen months. She paid the attorney ad litem's fees and court costs. By the time the Collin County probate case closed, she had spent $75,000 — on top of the $240,000 she had to finance to buy out the children's share — to keep the house she had lived in for nine years.
A will — naming Elena as the sole beneficiary, with a trust provision for Alex's share until he turned 25 — would have cost Robert between $1,200 and $2,000. It would have taken two hours of his time. It would have let Elena keep her home without a probate proceeding, a partition negotiation, or a $48,000 buyout.
Robert always meant to get one.
If Someone in Your Family Has Already Died Without a Will
If you are reading this because someone you love has already died intestate, the most important thing you can do is act quickly and get accurate legal advice before making any financial decisions. Do not:
- Transfer assets informally among family members without legal authorization
- Assume a surviving spouse owns everything and act accordingly
- Wait — the longer you delay, the more complicated the estate becomes
- Sign an affidavit of heirship without understanding that title insurers may not accept it for a decade
The right first step is a probate case review with an attorney who handles intestate estates regularly. At WG Law, attorneys Therese Gutierrez and Philip Burgess offer a complimentary probate case review — a quick intake assessment to evaluate your situation, identify which process applies (small estate affidavit, determination of heirship, or full administration), and outline what the case will realistically cost and take to resolve.
Not every intestate estate is as complicated as Robert and Elena's. Some qualify for the small estate affidavit. Some have heirs who agree quickly and move through administration smoothly. But you cannot know which category you are in until someone who knows Texas probate law looks at the specific facts.
The Lesson Texas Intestacy Law Teaches, Every Day
Texas intestacy law is not cruel. It is consistent, logical within its own framework, and carefully designed to distribute property when no instructions exist. But it is not designed to do what most families assume it will do. It does not assume your spouse should inherit your half of the marital home if you have children from another relationship. It does not assume your parents or siblings should be excluded. It applies a statutory formula to every Texas estate, regardless of what the decedent would have wanted.
The only way to override that formula is a will.
Robert Castillo's family is not unusual. Every week, families in Collin County, Denton County, and Tarrant County face probate courts having to untangle exactly this situation — a surviving spouse who assumed they were protected, stepchildren who have rights they didn't ask for, and a court process nobody wanted.
The hard truth is that this outcome is not a flaw in the system. It is the system working exactly as designed — when no one told it what to do instead.
This article provides general legal information about Texas probate and intestacy law and does not constitute legal advice. Every estate is unique. If someone in your family has died without a will, or if you want to ensure your own estate avoids this outcome, contact WG Law for guidance specific to your situation.
Speak with a Texas Probate Attorney
WG Law attorneys Therese Gutierrez and Philip Burgess handle intestate probate cases throughout Collin County, Denton County, Tarrant County, and the DFW metroplex. We offer a complimentary probate case review — a no-obligation intake assessment to help you understand your options and what comes next.
Call 214-250-4407 or use the contact form below to request your free probate case review. Our McKinney office is at 7701 Eldorado Pkwy, Suite 200, and our Southlake office is at 1560 E. Southlake Blvd., Suite 100.