College Station, TX asked in Probate and Estate Planning for Texas

Q: My step Grandfather left a will leaving my deceased Mother (his Stepdaughter) and my Developmentally challenged Sister

the house in Texas Jointly. He left the Stepson ( my uncle ) the property in another State , and all bank accounts and cash to his Brother (my grandfathers brother) My mother is deceased and their is only Myself and my sister that cares for our mentally challenged adult sister , will my mothers portion go to me and my sister or will my handicapped sister inherit 100% and can my sister have property deeded to her or must it be handled through a trust. My sister draws social Security and is also on Medicaid and medicare , but does not have a guardian or anyone with power of attorney over her. she just has a designated payee for the Social Security. The Anti Lapse laws in Texas confuse me. Can you please help My uncle is starting probate.

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1 Lawyer Answer
Dillon B Norton
Dillon B Norton
  • Estate Planning Lawyer
  • Houston, TX
  • Licensed in Texas

A: This is a tough question. It depends on the terms of your grandfather's will and whether your mother left a valid will stating whom shall benefit from her estate and how. It may also depend on who died first or the length of time between their deaths if your mother pre-deceased your grandfather. Without viewing both of their wills, this question is nearly impossible to answer.

Regarding the Texas anti-lapse statute, it is designed to prevent property being given away under a will, to a named beneficiary who predeceases the testator (will maker - grandfather) from being distributed as if the testator died without a will. Without the anti-lapse statute, a testator's estate plan can be frustrated.

Here's how it works. Testators can make two type of gifts, class gifts, and gifts to specifically named individuals. Class gifts are gifts to a class of individuals, like, "I give x property to all my brothers." Thus, only the testator's brothers are in the class of people that can receive "x," and no one else. If one brother dies, then his interest in "x" goes back into the pot for the other brothers, and the deceased brother's descendants or named beneficiaries in his will receive no portion of "x." However, if the testator made a gift to specific individuals, like, "I give x property to John, Bob, and Darrell," all of whom are the testator's brothers, and John pre-deceased the testator, then John's descendent's will receive John's interest. And under the anti-lapse statute, Bob, and John's other brother, Darrell, will not receive John's interest.

I hope this helps. You should hire independent probate counsel to review the wills and probate filings to help you determine what you should do. It depends on their respective wills.

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