Legal Question in Wills and Trusts in Texas
heirship vs will
My stepfather died in 2002, leaving a will, with all benefits going to me, as he had no other children or wife.I probated the will that year.
His brother has now passed, leaving a will with proceeds going to another brother and my stepfather.The living brother has now filed a affidavit of heirship that says none of proceeds will come to me, because I was never adopted.
Which takes presidence, the will or heirship? They quoted section 68 of probate code.
1 Answer from Attorneys
Re: heirship vs will
They are probably right, depending on the exact wording of your step-uncle's will. If step-uncle left 1/2 of his estate to your stepfather, and your stepfather predeceased him, then step-uncle's will controls what happens next. The only way the inheritance would pass according to stepfather's will is if stepfather survived step-uncle, or if step-uncle's will specified that the inheritance would go to stepfather's estate if stepfather predeceased. Normally wills only leave gifts to living people, and then either set out alternate beneficiaries if a beneficiary predeceases, or leave it to the operation of law. The relevant statute here, Probate code 68, states (paraphrased) that if a brother predeceases, and no alternate recipient is specified, then the gift to the brother goes to the brother's descendants. As a step-son, you don't qualify.
Unless there is some special language in step-uncle's will, you're out of luck.
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