Children 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.
If This Post Was Helpful
Please consider sharing it on Facebook, Twitter, Google+ or Linkedin by clicking the buttons.
Contact Us.
Tell me what happened
Write to me through the contact form: what happened, roughly when, and who is involved. I read these myself. Writing means our first conversation can be about your situation instead of getting me up to speed.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney–client relationship. These matters turn heavily on specific facts and specific dates, and the law has exceptions this page does not cover. You should not take, or refrain from taking, any action based on this page. Discuss your circumstances with an attorney who can advise you on them.