Original Publication: San Antonio Express News, June 11, 2012
Dear Mr. Premack: My family suffered a dual catastrophe recently. My mother passed away on May 3 and my brother died in an accident just a week later. Mother left a Will that gave her rent houses and her home equally to her children. It says that if any of us are not alive to get our share, it goes to our spouses. My brother had not made a Will, was in his third marriage (he finally got into a good marriage) but he has kids from his first two wives. We want my brother’s share of mother’s assets to go to his wife, which is what mother’s Will requires. Are mother’s instructions in her Will going to be followed or does my brother’s death after her cause a problem? – S.B.
Texas law allows your mother to write her own rules about the requirement of survival. Anyone making a Will, a trust, or other written disposition of property upon death has the right to require the named heir to outlive her by any chosen time period. However, if she fails to set her own time period the law then imposes a 120 hour (5 day) survival period.
For instance, your mother could have stated in her Will that “I leave everything to my children in equal shares. To inherit, a child must survive me by 30 days. If a child fails to survive me by 30 days, that child’s share shall instead pass to his spouse.”
If your brother then died 7 days after she died, he would be treated as though he died before her. His share would pass to his spouse which is what your mother wanted to achieve. By requiring a survival period, she was able to keep the focus on the terms of her Will during that period. If someone dies within that period, her Will is looked to for the solution. If someone dies after that period, her Will is no longer in control.
What if your mother’s Will has the statements recited above requiring 30 days survival, and your brother’s accidental death happened 32 days after mother died (instead of 7 days). Since he lived longer than her 30 day requirement, he is entitled to his share of her estate under her Will. But his unfortunate death on day 32 does not give him much time to enjoy his inheritance. These new assets he is entitled to receive must pass to someone else. If he has a Will, it names his heirs. If (like your brother) he has no Will then Texas law of intestacy decides who receives the assets. In your brother’s case, by law his children would inherit that share instead of his third wife, so your mother’s ultimate wishes would not be followed.
Your mother could have kept the focus on her Will by inserting a longer survival time period. Instead of 30 days, she could have said 60 days. Being conservative, she may worry that after setting a 60 day survival requirement and someone will die on day 61. Anticipating that, should she set a 90 day survival requirement, or 6 months or a year? No, because imposing a lengthy survival time forces the heirs to wait until that time has passed before they can receive their inheritance.
If the Will says “my heirs must survive me by a year” then none of them get anything until the year ends. They will be very unhappy waiting that long. A balance must be found – one that sets a survival period short enough to be convenient yet long enough to provide statistical protection. In my experience, the default 120 hour period is much too short. It does not retain focus on mother’s Will for long enough. I’ve found that a 30 day period strikes a good balance (since statistically anyone who outlives you by 30 days is likely to outlive you by a long time).
In your family’s specific situation, you did not say whether her Will contains a specific survival period. If it is silent on this issue, then the statutory 120 hour period applies. He died 7 days (about 168 hours) after her, so he made it past the 120 hours. Thus he inherits his share of her estate. The executor of your mother’s Will needs to talk to a Certified Elder Law Attorney to start probate of her Will. When his share is set aside, his family will need to submit his estate to a court proceeding to determine his heirs (which should, under Texas law, be his children). That is not the outcome your mother desired, and may not be what he desired.
The lessons from this situation are: 1) each of us should have Wills so our survivors know our specific instructions, and 2) all of our Wills should contain clauses setting appropriate survival periods for our heirs.
Paul Premack is a Certified Elder Law Attorney practicing estate planning for all ages and probate law in San Antonio. Original Publication: San Antonio Express News, June 11, 2012