WILLS TRUST PROBATE Chapter 2 LGLA 1353

Basic Procedure for Determining Shares of Descendants

Basic Procedure for Determining Shares of Descendants Step One: Identify intestate's children Step Two: Determine if any predeceased child left a descendant who outlived intestate Step Three: Ascertain state's method of handling multi-generation succession. See Texas Estates Code §201.001 (a) and (b) and Texas Estates Code §201.101 (a) and (b), below.

Chapter Objectives

Chapter Objectives Understand why most people die intestate Describe how surviving spouses are protected under modern statutory systems Understand mechanisms used to determine the shares of descendants Discuss the process of escheat

Escheat

Escheat Escheat: A process by which the property of an intestate passes to the state government. If the intestate dies without an heir who is entitled to take under the jurisdiction's intestacy statutes, the intestate's property reverts to the state government through the escheat process. Some states have enacted "laughing heirs" statutes, so that if a relative within a certain degree is not found, the property escheats to the state. Note: This is not the case in Texas. Even a very remote relative can inherit property from a Texas resident before the property would escheat to the state.

Intestate with Surviving Spouse

Intestate with Surviving Spouse Community Property Jurisdictions: Surviving Spouse retains ½ of the community property. Depending on the state's laws, the Surviving Spouse may also inherit a portion of the Decedent's separate property. In virtually every jurisdiction, the Decedent's descendants inherit what is not distributable to the Surviving Spouse.

Parentelic Systems

Parentelic Systems A system of distributing shares of intestate property equally between maternal ancestors and collaterals and paternal ancestors and collaterals. Texas Estates Code Section 201.001 (f). If none of the kindred described by subsections (b)-(e) (descendants, parents, siblings, descendants of deceased siblings) survive the person, the person's estate shall be divided into two moieties, with (1) one moiety passing to the person's paternal kindred as provided by Subsection (g); and (2) one moiety passing to the person's maternal kindred as provided by Subsection (h).

Per Capita Per Capita with Representation

Per Capita with Representation A system for distributing property in which distributees take shares by right of representation at the generation with living members closest to the decedent. See Texas Estates Code Section 201.101 above.

Per Stirpes

Per stirpes distribution: A system for distributing property in which distributees take shares by right of representation at the generation closest to the decedent.

Reasons Most Individuals Die Intestate

Reasons Most Individuals Die Intestate Lack of property Unaware of importance Indifference Cost Time and effort Complexity Admission of Mortality Reluctance to Reveal Private Facts

Separate Property v. Community Property

Separate Property v. Community Property Separate Property (Texas Family Code §3.001): (1)The property owned or claimed by the spouse before marriage; (2)The property acquired by the spouse during marriage by gift, devise, or descent; and (3)The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Community Property (Texas Family Code §3.002): Community property consists of the property, other than separate property, acquired by either spouse during marriage.

Texas Estates Code Provisions Decedent who has a Surviving Spouse

Texas Estates Code Provisions Decedent who has a Surviving Spouse Texas Estates Code Section 201.002 Separate Estate of an Intestate (a) If a person who dies intestate leaves a surviving spouse, the estate, other than a community estate, to which the person had title descends and passes as provided by this section. (b)If a person has one or more children or a descendant of a child: (1)The surviving spouse takes one-third of the personal estate; (2)Two-thirds of the personal estate descends to the person's child or children, and the descendants of a child or children; and (3)The surviving spouse is entitled to a life estate in one-third of the person's land, with the remainder descending to the person's child or children and the descendants of a child or children.

Texas Estates Code Provisions Decedent who has a Surviving Spouse-Cont.

Texas Estates Code Provisions Decedent who has a Surviving Spouse-Cont. Texas Estates Code Section 201.003. Community Estate of an Intestate (b) The community estate of the deceased spouse passes to the surviving spouse if (1) no child or other descendant of the deceased spouse survives the deceased spouse; or (2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse. (c) If the deceased spouse is survived by a child or other descendant who is not also a child or other descendant of the surviving spouse, the deceased spouse's undivided one-half interest in the community estate passes to the deceased spouse's children or other descendants.

Texas Estates Code

Texas Estates Code Section 201.001 (a) If a person who dies intestate does not leave a spouse, the estate to which the person had title descends and passes in parcenary to the person's kindred in the order provided by this section. (b) The person's estate descends and passes to the person's children and the children's descendants. Texas Estates Code Section 201.101. Determination of Per Capita with Representation Distribution. (a) The children, descendants, brothers, sisters, uncles, aunts, or other relatives of an intestate who stand in the first or same degree of relationship alone and come into the distribution of the intestate's estate take per capita, which means by persons. (b) If some of the persons described by Subsection (a) are dead and some are living, each descendant of those persons who have died is entitled to a distribution of the intestate's estate. Each descendant inherits only that portion of the property to which the parent through whom the descendant inherits would be entitled if that parent were alive