Asked in Probate for Texas

Q: My father passed away a month after my grandmother and my grandmothers will has not been probated.

What happens to my father's inheritance if my grandmother's will is per stirpes

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

A: Most Wills contain a provision that requires an heir to outlive the Will's maker by a certain amount of time, often 30 days or 60 days. If the Will DOES contain such a clause, then you have to determine if your father died before or after that "survival" requirement date. If he died before the date, then he is treated as though he died before your grandmother (even though he actually died after her). In that case, the "per stirpes" clause would activate and the assets would pass to his descendants. On the other hand, if he died after the survival requirement date, then he is the heir to whatever she left him under her Will. It is likely necessary to probate her Will to recognize him as heir, and also to probate his Will to determine to whom the assets pass due to his death. Also, if he was named Executor in your grandmother's Will he obviously cannot fill that role, so the next person nominated in your Grandmother's Will should be taking action and consulting with legal counsel. It is also important to recognize that an Executor must have an attorney; under Texas law the Executor may not represent himself/herself in court.

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