Intestate Succession

Question 1

What is intestate succession?

Answer 1

This is when the decedent did not leave a will or will was invalid, the will does not complete disposition of the estate OR an heir successfully contested the will and the will is denied probate.

Question 2

H dies intestate and is survived by wife W and their minor children A, B, and C. H and W owned community property worth $500,000.

What is the distribution?

Answer 2

W receives all the community property because the children are survived by their father’s spouse W, who has descendant children remaining. A, B, and C do not receive anything.

Question 3

H dies intestate and is survived by wife W. A and B are children from H’s first marriage, and W and H had adopted C. H and W owned community property worth $500,000.

What is the distribution?

Answer 3

Since H was survived by descendants, some who were not descendants of surviving spouse W:

W: 1/2 of community property through survivorship
A, B, and C each receive 1/6 of the property through inheritance.

Question 4

H died intestate and had stocks and bonds worth $300,000. What is the distribution to wife W or to children A, B, and C (regardless if from this or an earlier marriage)?

Answer 4

The surviving spouse always receives 1/3.

Children/descendants receive the remaining 2/3. Here, A, B, and C will each have an equal portion of the 2/3 share.

Question 5

H died intestate and had stocks and bonds worth $300,000. What is the distribution to wife W or to parents M and D?

Answer 5

Because H has no descendants,only W inherits all the separate personal property. When parents or collateral kin remain, the surviving spouse always win it all.

Question 6

H died intestate and had owned a ranch when he married W. H had children and/or descendants. What is the distribution?

Answer 6

W: as surviving spouse, she receives 1/3 life estate in ranch

If H has children or descendants, they get the remainder 2/3 plus remainder following 1/3 life estate.

Question 7

H died intestate and had owned a ranch when he married W. H did not have any descendants, but his parents or siblings survived.

What is the distribution?

Answer 7

Surviving wife W receives 1/2 of ranch in fee simple.

The parents (or H’s siblings) receive 1/2 of ranch in fee simple

Question 8

H died intestate and had owned a ranch when he married W. His only relatives are an aunt and uncle.

What is the distribution?

Answer 8

W gets all of the separate real property (the ranch). ONLY when there are no parents or first-in-line collateral kind (descendants of the parents) does the spouse get all.

Question 9

What is HEF?

Answer 9

When dealing with a will or intestacy and there’s a surviving spouse, mention HEF.

H: homestead (if applicable)

E: Exempt personal property set aside

F: Family allowance

Question 10

What is an example of HEF using this scenario: H died intestate and had owned a ranch when he married W. His only relatives are an aunt and uncle.

Answer 10

If the home qualifies as a homestead, W (surviving wife) is entitled to exclusive occupancy of her homestead for so long as she occupies it. Some of the personal property assets may qualify for an exempt personal property set-aside in W’s favor. Finally, if W owns little or no separate property, she can petition for family allowance in an amount needed to support her for one year. The exempt personal property set-aside and family allowance come “off the top” of the estate before the intestate distribution is made.

Question 11

M dies intestate and is survived by the following family members:

• daughters: A and B
• granddaughters of now-deceased C and D: C1, C2, D1, D2, and D3

Answer 11

Due to per capita with representation, A and B each obtain 1/4 of their mother’s estate. The children of the deceased daughters C and D also get their mother’s distribution (C and D each would have been entitled to 1/4):

C1 and C2 each get 1/8
D1, D2, and D3 each receive 1/12

Question 12

M dies intestate and is survived by the following family members:

• M’s daughters A and B did not have any children
• granddaughters of now-deceased C and D: C1, C2, D1, D2, and D3

Answer 12

The distribution is as follows: M’s estate will be divided evenly among the five children.

Therefore, C1 and C2 each get 1/5.
D1, D2, and D3 each get 1/5.

Question 13

S died intestate, leaving behind:
M = mother
Sister 1 + her child X
Sister 2 + her children Y + Z
Deceased Brother's children = V + W
Surviving children of brother B1 = V and W

Answer 13

If survived by both parents, 1/2 of estate goes to each parent. Here, M is S’s only living parent.

If survived by one parent and collaterals:
M as mother receives 1/2.
Siblings S1 and S2 each get 1/6.
V and W (nephews of deceased sibling): 1/12*

*V and W’s share is what deceased sibling would have inherited if he had survived S.

Question 14

When is there a presumption of paternity?

Answer 14

1) child was born in or w/in 300 days after marriage OR parties married after child’s birth and man voluntarily asserted paternity OR during first two years of child’s life he resided w/ child and represented to others that child was his

OR

2) man signed sworn statement for paternity

OR

3) paternity suit figured it out

OR

4) paternity established in probate proceedings with clear and convincing evidence

Question 15

Can a stepchild inherit from a step-parent?

Answer 15

No unless there is adoption by estoppel. This is when a step-parent promised to adopt the stepchild but then never did.

Question 16

Can an adopted child inherit from a deceased adoptive parent (intestate)?

Answer 16

Yes (and adoptive parent can inherit from deceased child). Adoption established parent-child relationship for ALL purposes under TX law.

Question 17

Can an adopted child inherit from his intestate biological mother?

Answer 17

Yes, unless there is a decree terminating the parent-child relationship in which the inheritance rights are expressly terminated. If the termination decree says nothing about inheritance, child can inherit.

BUT a biological mom cannot inherit if child dies intestate.

Question 18

Can a biological mom inherit from her intestate child that was adopted by another?

Answer 18

No. While the adopted child may inherit from an intestate deceased biological mom, the biological mom cannot inherit from the child she gave up for adoption.

Question 19

Can a person who was adopted as an adult inherit from his biological parents?

Answer 19

No. If adopted as an adult, no longer able to inherit from intestate biological parents.

Question 20

T dies intestate, leaving behind W (5 months preggo) and son from first marriage, S. What is the distribution?

Answer 20

W gets 1/2 community interest and the other half goes to T’s descendants. T and W’s child is born 4 months after T’s death. The child and S get a share (1/4 for child and 1/4 for S).

Question 21

How should we treat a predeceased beneficiary who dies 2 days after testator?

Answer 21

120-hour rule always applies. Anti-lapse statute applies if there is a will and the beneficiary’s descendants are the descendants of the testator.

Question 22

If the will requires survival (“to daughter, if she survives me”), does the 120-hour rule apply?

Answer 22

No. If the will requires survival, the 120-hour rule does not apply so daughter (who did not survive by 120 hours)’s estate can inherit from the testator.

Question 23

If spouses die within 120 hours of each other, what happens to community property?

Answer 23

If spouses die within 120 hours of each other, 1/2 of community property will go to one spouse’s estate and the other 1/2 goes to the other spouse’s estate.

This is the rule whether spouses left wills or not.

Question 24

What does the 120-hour rule apply to?

Answer 24

Life insurance policies and joint and survivor bank accounts and property held in joint tenancy with the right of survivorship

Question 25

T, gave her son A land worth $30,000 on his 35th birthday. She told her sons B and C that they would receive similar gifts when they turn 35. T dies before B and C turn 35. T dies intestate and leaves behind property worth $300,000.

What is the distribution?

Answer 25

A lifetime gift to a descendant or any heir is NOT treated as an advancement UNLESS there is contemporaneous writing by the donor OR it is acknowledged as such in writing by recipient.

Here, A’s gift of $30,000 was not an advancement. The rule with three heirs is that A, B, and C are obligated to 1/3 of the remaining $300,000.

Question 26

If a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, how should the community property be distributed?

Answer 26

All to surviving spouse. Surviving spouse also retains one-half community property interest and inherits decedent’s one-half interest.

If at least one of decedent’s descendants is not the surviving spouse’s descendant (aka not a child from the marriage), the decedent’s one-half community interest passes to descendants, who take per capita with representation.

Question 27

If an unmarried decedent dies intestate and is survived by both parents and two children, how should her estate be distributed?

Answer 27

When an unmarried decedent dies intestate and is survived by both parents and by two children, her estate passes 1/2 to each child.

If decedent had NO descendants but parents survived, 1/2 passes to father and 1/2 to mother.

Question 28

If a decedent dies intestate and leaves no spouse, children or their descendants, or either parent, how should his estate be distributed?

Answer 28

If a decedent dies intestate and is not survived by a spouse, by children or their descendants, or by either parent, his estate passes to the descendants of his parents (his brothers and sisters or their descendants), distributed per capita with representation. So it would go to his uncles and aunts and their descendants.

If the decedent is not survived by either parent or by any first-line collaterals (descendants of parents), the estate is divided into two halves: 1/2 to maternal grandparents or their descendants and 1/2 to paternal grandparents or their descendants. Each living person at that level takes a share, and the share of each deceased person at that level passes to her descendants by right of representation.

*The property goes to the state only if no heir of the decedent is found.

Question 29

How are the intestate shares of descendants distributed in Texas?

Answer 29

Intestate shares of descendants are distributed per capita with representation, (property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation).

Question 30

What is per capita with representation?

Answer 30

This is when property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation.