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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55278
Experience:  29 years of experience practicing law, including tax and estate planning.
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Dad has passed a year or so later mom passes. They have 5

Customer Question

Dad has passed a year or so later mom passes. They have 5 adult children. Their estate left to the 5 children. No grandchildren mentioned anywhere. 1 son declines his 20% n the estate (he had taken a considerable amt. from mom n a few months prior to her death. My question is does his 20% go to his children automatically by law? Or is it to b divided among the 4 siblings ? Thank you
Submitted: 1 year ago.
Category: Estate Law
Expert:  Richard replied 1 year ago.

Good morning. My name is ***** ***** I look forward to helping you.

This is going to depend upon whether or not the will contains specific language as to what happens to a child's share if a child should predecease the testator. Section 122.101 provides that the effect of a disclaimer is to treat that person as if he predeceased the decedent. That statute is set forth below. If the will specifies what happens if the person predeceases the decedent, then the will controls. If the will is silent on the topic, the the disclaiming child's share goes to his children under the Texas anti-lapse statute which is provided below.

Sec. 122.101. EFFECT. Unless the decedent's will provides otherwise:

(1) property subject to a disclaimer passes as if the person disclaiming or on whose behalf a disclaimer is made had predeceased the decedent; and

(2) a future interest that would otherwise take effect in possession or enjoyment after the termination of the estate or interest that is disclaimed takes effect as if the disclaiming beneficiary had predeceased the decedent.

Sec. 255.153. DISPOSITION OF PROPERTY TO CERTAIN DEVISEES WHO PREDECEASE TESTATOR. (a) If a devisee who is a descendant of the testator or a descendant of a testator's parent is deceased at the time the will is executed, fails to survive the testator, or is treated as if the devisee predeceased the testator by Chapter 121 or otherwise, the descendants of the devisee who survived the testator by 120 hours take the devised property in place of the devisee.

(b) Devised property to which Subsection (a) applies shall be divided into the number of shares equal to the total number of surviving descendants in the nearest degree of kinship to the devisee and deceased persons in the same degree of kinship to the devisee whose descendants survived the testator. Each surviving descendant in the nearest degree of kinship to the devisee receives one share, and the share of each deceased person in the same degree of kinship to the devisee whose descendants survived the testator is divided among the descendants by representation.

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