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Do Grandchildren or Great-aunt Inherit?

Dear Mr. Premack: My mother was an only child. She died in 1992, survived by her elderly parents. Her mother later died in 2001 and her father died in 2004. I assumed that under Texas law that the grandchildren would receive the grandparents’ estate. Though this started without my knowledge, I have recently discovered that my grandfather’s sister has claimed that she is the rightful heir and has filed paperwork to place all his property in her name. Since my grandparents died so long ago, do my sibling and I have any legal rights now to fight for the estate? – DLH

Texas has several legal approaches to determining who receives ownership of assets when someone dies. Your question leaves out one set of facts that would completely control the legal answer: did your grandparents have Wills or other legal estate planning tools in place when they died? Did your grandparents, for instance, place all of their assets into a living trust which then named your grandfather’s sister as the beneficiary and heir? Or did your grandparents die without any type of pre-planning?

You have to look at each person to understand the legal outcome. First, your mother. Your mother died before her parents, and you are not inquiring about her property. Thus, her role is limited to being your genetic link to your grandparents, which may give you status as heir-at-law.

Second, your grandmother. She died in 2001, before her husband. If she had a Will that was probated, you must locate it through the county clerk’s office in the county where she resided. The terms of her Will control the disposition of her testamentary estate. With or without a Will, she may have made legal arrangements for the disposition of her NON-testamentary estate. This would include, for instance, joint accounts with survivorship rights, designations of beneficiaries on insurance and IRA accounts, and transfer-on-death contracts for stocks and bonds. The terms of each such designation would control who legally became the owner of each item upon her death.

Assume for a moment that she had a Will and other arrangements leaving all assets to your grandfather (which would be fairly typical). If so, he became owner of all her assets when she died so long as the Will was probated. Conversely, assume she died intestate without other arrangements. Under the law that existed in 2001, all her assets still passed to your grandfather (but he would have been responsible for taking legal action to prove he was the legal heir).

Finally, your grandfather. He died in 2004 leaving only grandchildren as descendants. Also locate his probated Will through his county clerk’s office to learn the disposition of his testamentary assets. Seek information on his NON-testamentary designations to learn who took ownership of those items upon his death. Those arrangements are legally binding.

If he did not make any of those plans, then (and only then) do you and your sibling become heirs-at-law under the Texas intestacy laws. His own siblings would only have rights if your grandfather died without a spouse, without children, without grandchildren and without surviving parents. Even so, you say his sister “filed paperwork” claiming the estate. If she filed a “determination of heirship” in court, you must ask the court for the name of the attorney ad litem who represents the unknown heirs, and make yourselves known. If she filed an Affidavit of Heirship, the law says you have not lost your rights but must take action to correct the inaccuracies she entered into the record. For these steps you should hire an experienced probate litigation attorney.

The take-away message from all of this, for all readers, is: don’t let this happen to your family. Everyone should make a Will or other binding legal arrangements (like a trust) to avoid family conflict and to be sure that your own desires come to pass after you die.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, June 17, 2013


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