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Estate inheritance from an Intestate

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richie78

Member
What is the name of your state? Texas

Here is a seemingly very simple problem to solve and understand.

A man dies intestate.
Spouse predeceased him.
He has two surviving children.
One of these children dies intestate before his fathers estate enters probate.
The remaining surviving child commences Probate of the father's estate.

How is the Probate court to distribute the father's estate?

All 100% of the father's estate to the surviving child?

Or, since both children were alive at the time of the father's death and they became "vested" in their father's estate, would only 50% of the father's estate go to the living child, and the other 50% to the deceased childs estate?

After reading the Descent and inheritance laws, I am very confused on this issue. Anyone care to clarify, and explain which is correct and why?

richie
 


richie78

Member
Go to http://www.co.harris.tx.us/probate/Crt1/Forms.aspx and download the decent and distribution chart. It explains how intestacy in Texas in color! If that doesn't help, post back.
Thanks for the response. Went to the website, and reviewed the charts there. However, I am still confused, because I can interpret the charts to suggest both results that I am trying to clarify, ie, 100% to the sole surviving son, or only 50% to the surviving son and 50% to the estate of the deceased son. Both cannot be correct especially so if the deceased son had lineal descendants.

Your additional thoughts would help me.

richie
 

ShyCat

Senior Member
Looking at the referenced chart, I have no idea where the confusion lies. It clearly states for a "Widower with Children", the estate is shared by the "Children equally or their descendents". If the deceased son had children, 50% of their grandfather's estate would go to them. The surviving son would only get 50%, not 100%. If the deceased son had no children, the surviving son gets 100%.
 

richie78

Member
Looking at the referenced chart, I have no idea where the confusion lies. It clearly states for a "Widower with Children", the estate is shared by the "Children equally or their descendents". If the deceased son had children, 50% of their grandfather's estate would go to them. The surviving son would only get 50%, not 100%. If the deceased son had no children, the surviving son gets 100%.
Thanks for your quick reply. As you explained, it appears to be very clear. And I at first thought that was the only interpretation. But in the example, that I am struggling with, one of the two sons dies before the estate enters into Probate. Since he is no longer alive and will not be around to accept his inheritance, will the Probate court consider that he no longer qualifies as an heir, and therefore distribute 100% of the estate to the sole living son? In other words doesn't an heir to an estate have to be living? I'm missing some important point here that I don't recognize. Can you explain further?

richie
 

ShyCat

Senior Member
In other words doesn't an heir to an estate have to be living?
Not always. A will could specify that only living heirs can inherit, but that is not the case here since there is no will. Wills often include "per stirpes" language that specifies inheritance by descendents of a predeceased heir. That, in fact, is how this state's intestate laws are written.

Bottom line: The grandchildren are lineal descendents and they inherit even if their father predeceased their grandfather or simply happened to died before probate was open. You are wasting your time trying to disinherit your neices/nephews.
 

richie78

Member
Not always. A will could specify that only living heirs can inherit, but that is not the case here since there is no will. Wills often include "per stirpes" language that specifies inheritance by descendents of a predeceased heir. That, in fact, is how this state's intestate laws are written.

Bottom line: The grandchildren are lineal descendents and they inherit even if their father predeceased their grandfather or simply happened to died before probate was open. You are wasting your time trying to disinherit your neices/nephews.
You really jumped to an erroneous conclusion concerning the basis for my inquiry. I am trying to understand how this works to insure that my daughter will still inherit from her maternal grandparents, and not lose her inheritance because her mother died before her mother's parents. This is the direct basis for my inquiry. According to Texas State Law:

"PROBATE CODE, CHAPTER II. DESCENT AND DISTRIBUTION, § 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT.
(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate."

And this seems to tell me that you have to be alive to inherit. Otherwise, you have no right to inheritance. After reading this again, it would appear that my daughter's inheritance from her maternal grand parents is still effective because of the qualification "...other than to children or lineal descendants of the intestate,..."

But thanks anyway for your help...

richie
 

ShyCat

Senior Member
Yeah, funny how the facts (and even gender!) suddenly change when someone points out an unflattering impression from the preceding posts.

I've also found that posters rarely continue to argue a point when they get the answer they want. In that light, it seemed reasonable to assume that "yes, the children will inherit from the grandfather" was not the answer you wanted.
 

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