Legal Question in Wills and Trusts in Texas

Distribution of estate, no ''per stirpes'' method

My aunt was pre-deceased by her husband; she died last

year; her will is currently in probate; her will

apparently left her estate in equal parts to her three

brothers and her sister-in-law. One brother and her

sister-in-law pre-deceased her (in addition to her

husband). There is no provision in my aunt's will for

the heirs of a deceased heir to have any portion of

her estate -- no per stirpes stipulation, as I

understand it. My question is: her sister-in-law's

children are contesting the will in an attempt to get

their mother's share. Is that ever successful in

Texas courts? (For clarity, my father's

portion will not come to me because he is the brother

who died prior to my aunt.) I am just wondering if

the will contestants are likely to be successful in

this effort.


Asked on 1/24/02, 6:49 pm

1 Answer from Attorneys
Peter Bradie Bradie, Bradie & Bradie

Re: Distribution of estate, no ''per stirpes'' method

Did the will have a residuary clause? The portions that would have gone to the deceased devisees would have gone into the residuary estate.

I can't say for certain what the outcome would be, but I seriously doubt that the sister-in-law's kids have any chance at all, since the sister-in-law would not have been an heir at law if the decedant died without a will.

The court will have to interpret whether the devise went to a class per capita, or whether the failed devises go by intestacy. The court isn't usually going to find a per stirpes distribution without the will specifically so stating.

Without seeing the exact language of the will, I'd expect the failed devises to go by intestacy; that would mean distribution among the heirs at law. However, if the language of the will is ambiguous enough, almost anything could happen.

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Answered on 1/24/02, 7:05 pm


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