New Braunfels, TX asked in Estate Planning for Texas

Q: If I die before I receive the distribution of an estate where my brother and I share 1/3, who gets my share?

Initially, posted at Probate Section. RE: Will includes: “...[1/3 of estate to my brother and me] the rest and residue of my estate in equal shares, share and share alike. In the event that my nephews have preceded me, I leave the share intended for the deceased nephew to the descent’s children, share and share alike. " I am still married to a spouse not seen in almost 20 years. She is not the mother of my child. She lives in SC, not it matters apparently. My uncle (the deceased) passed in January 2021. The linear decent: Maternal grandparents--->

my mother and uncle--->me--->my son

I believe, but have no proof that the inheritance will go to my son rather than be considered community property involving my estranged spouse.

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1 Lawyer Answer
Paul Premack
Paul Premack
  • Estate Planning Lawyer
  • San Antonio, TX
  • Licensed in Texas

A: The answer depends on who is alive when you die.

If your aunt (the Will's maker) is already deceased, you are waiting to receive your share, and then you die before your share is distributed - the answer is that it still goes to you, but is distributed as part of your estate pursuant to the terms of your probated Will (or if you have no Will to your heirs at law as determined by a court).

If your aunt is still alive, and you fear that you may predecease her - the answer is a) your aunt can change her Will in response to your death, and you don't know what she will do, or b) if your aunt leaves her Will as you have quoted in your question, then MAYBE your share goes to your children. I say maybe because the wording in her Will as quoted in your question is very poorly phrased, leaving questions that a court may interpret differently. If your aunt is still living, she should go to an experienced estate planning attorney to get her Will's wording repaired to use more concrete language.

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