willthumbnailChildren or Siblings

If a person dies intestate then all states have a statute that sets out who inherits. If a person dies testate the will sets out who inherits. In either of these cases, what happens if some of the people in the statute or in the will are alive and some are dead? How is the estate divided?

Some Survive and Some Don’t

This question is determined in Texas by another statute that says when a group, i.e., children, siblings, etc. would take under the circumstances, the estate will be distributed Per Capita. So, let us assume that a person dies with no will and no spouse but has five children who are all living. The children will each take an equal share per capita. The same is true if a person dies without a wife and children but leaves brothers and sisters who are all alive. However, if in the example, some of the children are living but others are dead or if some of the brothers and sisters are living but some are dead, the distribution changes. In these last two cases, the statute provides that the surviving children or the surviving brothers and sisters would each inherit one share, per capita, and the descendants of the deceased children or deceased brothers and sisters would divide the share that would have gone to their parent, per stirpes. If the deceased child or deceased brothers and sisters didn’t have descendants, their share would be distributed to the remaining children or remaining brothers and sisters.

The thing to remember is that if there is any living person in a generational level, that person gets a share per capita and everybody else takes per stirpes. EC201.101.

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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.