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Descent and Distribution Texas vs. the Uniform Probate Code

  • By:Christine Butts
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According to the Uniform Probate Code, descendants claiming to be heirs of an intestate decedent take by representation. When the estate of an intestate decedent passes to descendants by representation, the estate is divided into as many equal shares as there are surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and deceased descendants in the same generation who left surviving descendants if any. Then, each surviving descendant in the nearest generation to the decedent is allocated one share. The remaining shares are combined and then divided in equal shares among the surviving descendants of deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

The Uniform Probate Code adopts the per capita at each generation approach to intestate distribution among descendants, as the underlying premise behind such approach is that those equally related to the decedent receive an equal portion.  Further, a survey of client preferences conducted by Fellows of ACTEC concluded the intestate distribution plan most favored by clients enabled those of the same generation to inherit equal shares. The following states have enacted the Uniform Probate Code: Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, and Utah.

Importantly, a descendant may not disclaim his or her interest in the decedent’s estate in order that such descendant’s branch of the family tree receive an enhanced portion.  The Uniform Probate Code makes it clear that the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution if, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive at the time of distribution.

In Texas, if some of the children predecease and at least one child survives the intestate decedent, then each descendant of the child(ren) who predeceased the intestate decedent is entitled to a distribution of the intestate decedent’s estate.  Each such descendant inherits only that portion of the property to which the parent through whom the descendant inherits would be entitled if that parent were alive.  If all of an intestate decedent’s children predecease him, then the grandchildren of such decedent take equal shares.  The distribution plan adopted in Texas is referred to as per capita with representation.

The per capita with representation distribution plan divides the intestate estate into equal shares at the first generational level where there are living takers.  The denominator for such fractional share is determined by adding the number of those living at such level to those on such level who predeceased the decedent but left descendants who survived the decedent.  Those who are in such level take such fractional share.  The fractional share that would have otherwise passed to a person on such level had such person survived the decedent passes to his or her descendants.

About half of the states in the United States follow the intestate distribution scheme known as per capita with representation. Some such states include: California, Oregon, and Idaho.  Learn more . . 

Posted in: Asset Protection, Estate Planning


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