Facts A recent court of appeals decision illustrates what happens when you file an inheritance dispute in the Wrong Texas Court. An elderly Texas man had nine children. In the last few years of his life, one of his children...Read More
Deborah L. Jacobs, a staff writer at Forbes, wrote an article where she listed seven reasons why you should tell your children what they will or won’t inherit. While this is a difficult conversation especially as you age...Read More
The “slayer rule” is a rule that some states recognize that prevents someone convicted of causing a death from later profiting by inheriting from the deceased victim. As I’ve written before, Texas does not...Read More
Yes he can, according to the Texas Probate Code. A judge can declare that a parent can’t inherit by or through a child if the parent abandoned or failed to support the child; abandoned the mother during pregnancy and...Read More
In a posting on the World Bank’s blog, there is an article that points out that wives and daughters don’t have the same inheritance rights as husbands and sons in developing countries. In those countries, ownership...Read More
Inheritance Rights of Adopted Children Generally, in Texas, the inheritance rights of formally adopted children are the same as naturally born children. That means that they inherit from and through their adoptive parents....Read More
Community Property vs Separate Property Texas has community property and separate property. Basically, community property is property acquired during marriage except by inheritance or gift. Separate property is everything else....Read More
When are you dead? I recently wrote on the issue of when are you dead for probate purposes here. The issue is important because Texas has a statute that says that if a person gives you something in their will and you...Read More
When are you dead? The Simultaneous Death Act, Texas Estates Code §121.001 (formally Probate Code §47), provides that if you don’t survive the decedent by 120 hours or if you both die in a common disaster, it will be...Read More
Prior to 1991 Before 1991, the question of do illegitimate children have inheritance rights was answered differently than it is today. In Texas illegitimate children could only inherit from their biological parents if the...Read More
LapseThe word for today is “lapse.” In Texas, if a Testator gives something to someone (the beneficiary) in his will, what happens if the beneficiary dies before the Testator? Or to say it differently, what happens if the heir predeceases the maker of the will?
DescendantsThe general rule is that if the beneficiary is a descendant of the Testator, i.e. his children or grandchildren, the gift goes to the beneficiary’s descendants. The same would be true if the beneficiary is a descendant of the Testator‘s parents.
Non-DescendantsIf the beneficiary is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and goes to the person named as the residuary beneficiary. The residuary beneficiary is the person who the Testator names as the person who gets “all the rest and residue of my estate” or similar language. If there is no residuary clause in the will or the residuary beneficiary dies before the Testator and is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and the Testator dies intestate as to the property that would be in the residuary estate. It would then go to the Testator‘s heirs at law.
ProblemsHowever, the anti-lapse statute, §251.151-§251.153 of the Texas Estates Code (formerly §68 of the Probate Code, provides) “(t)his Subchapter applies unless the testator’s last will and testament provides otherwise.” For example, a devise or bequest in the testator’s will such as “to my surviving children” or “to such of my children as shall survive me” prevents the application of Subsections 251.153 and 251.154 (formerly Section (a) of the Probate Code §68.) In 2011, a court held that the testator’s will provided otherwise when he defined his residuary estate as ” the term “residuary estate” means all property in which I may have any interest (including lapsed gifts)…” No. 01-10-00118-CV. The court ruled that because of this language, the gift did lapse and went into the residuary estate even though in the will, the testator provided that the gift originally went to the testator’s children who predeceased him but who had children surviving. Pearls of wisdom: A poorly drawn will may mean that your property goes to someone other than the person who you want to receive the property.
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Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle litigation cases related to inheritance disputes including will contest, related property disputes and associated torts throughout Texas. Our principal office is in Tyler, Texas. Contact Robert