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
1 Answer from Attorneys
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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