What if a parent leaves his estate to 2 children and one of the children dies before the parent?
Full Question:
If a parent leaves their estate to 2 children and one of the children dies before the parent does, but the parent does not change the will, what happens?
06/14/2007 |
Category: Wills and Estates |
State: Texas |
#6443
Answer:
The applicable Texas statutes are as follows:
§ 68 PROB. CODE. Prior Death of Legatee
(a) If a devisee who is a descendant of the testator or a descendant of a testator's parent is deceased at the time of the execution of the
will, fails to survive the testator, or is treated as if the devisee
predeceased the testator by Section 47 of this code or otherwise, the
descendants of the devisee who survived the testator by 120 hours take
the devised property in place of the devisee. The property shall be
divided into as many shares as there are surviving descendants in the
nearest degree of kinship to the devisee and deceased persons in the same
degree whose descendants survived the testator. Each surviving descendant
in the nearest degree receives one share, and the share of each deceased
person in the same degree is divided among his descendants by
representation. For purposes of this section, a person who would have
been a devisee under a class gift if the person had survived the testator
is treated as a devisee unless the person died before the date the will
was executed.
(b) Except as provided by Subsection (a) of this section, if a devise
or bequest, other than a residuary devise or bequest, fails for any
reason, the devise or bequest becomes a part of the residuary estate.
(c) Except as provided by Subsection (a) of this section, if the
residuary estate is devised to two or more persons and the share of one
of the residuary devisees fails for any reason, the residuary devisee's
share passes to the other residuary devisees, in proportion to the
residuary devisee's interest in the residuary estate.
(d) Except as provided by Subsection (a) of this section, if all
residuary devisees are dead at the time of the execution of the will,
fail to survive the testator, or are treated as if they predeceased the
testator, the residuary estate passes as if the testator had died
intestate.
(e) This section 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 Subsection (a) of this
section.