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paranow

"heir at law"

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Here's the brief situation. State of Texas.

Bob is married to Thelma. Bob and Thelma have 4 children. Bob creates a will and a trust. Bob dies and trust is instructed to "take care" of Thelma until her death. At her death, whatever is left in the trust is to be divided equally among the 4 children, or their "heirs at law". Thelma dies a year after Bob.

One of the 4 children, lets call her Diane, died 2 years before her father Bob died. Diane was married before her death to Clarence. Clarence and Diane had 4 children. No change was made to the will or the trust (concerning Diane) after Bob's death.

Now, concerning Diane (since she predeceased her father), who are the "heirs at law"....Clarence? Or the 4 children? Or both?

Clear as mud?

Thanks.

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The usual definition of an "heir at law" is one who stands to inherit if the deceased dies without a will. Given that definition, Clarence would be one of Diane's heirs at law. (And, if that is not what Bob intended, it is very, very poor wording.)

If this is one of those "Let the fun begin..." situations, the party being excluded (or objecting to the inclusion of one of the parties) had best consult with an experienced Texas trust attorney.

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I take it that you are looking for an opinion that Clarence is outta there?

Whether Bob had a will or whether Diane had a will is neither here nor there with whether someone is an heir at law. For example, say I ticked my father off royally and he wrote a will that clearly, plainly, incontestably disinherited me. No matter. I am still one of his heirs at law. I may not be inheriting anything, but I am still an heir at law.

Honestly, I would be more comfortable arguing the case for Clarence's inclusion. Along the lines of...

Bob could have used language such as "or their descendants" or "per stripes" or some other language that indicated his intent was to include only his children or his children's descendants if any of the children predeceased. Instead, he chose to use the term "heirs at law." Moreover, he still had the opportunity to revise the wording (at least I am assuming that he could revise the trust before his death) after one of his children predeceased. Therefore....

That is why I think that someone arguing for Clarence's exclusion needs to consult with a trust attorney to determine if there is something in Texas statute or case law that would limit heirs at law to only those related by blood.

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paranow said...

Bob creates a will and a trust.

It's worth nothing that you prrovided zero details regarding the will. I will therefore assume that the will was a "pour over will" -- i.e., that the will left Bob's entire estate to the trust.

paranow said...

At her death, whatever is left in the trust is to be divided equally among the 4 children, or their "heirs at law".

Does the trust really use this disjunctive (i.e., does it really provide that the balance goes to the children or the "heirs at law")?

paranow said...

who are the "heirs at law"....Clarence? Or the 4 children? Or both?

The term "heirs at law" typically refers to the persons who would inherit from the estate if there were no will. In the situation you described, the "heirs at law" would be Bob and Thelma's three surviving children and Diane's four children.

Subject to your clarification regarding the contingent benficiary provision, as well as the other terms of the trust, if any regarding what happens if a beneficiary predeceases Bob or Thelma, it is possible that the trust res could end up getting divided seven ways between the three surviving children and Diane's four children.

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paranow said...

At her death, whatever is left in the trust is to be divided equally among the 4 children, or their "heirs at law".

After reading "harrylime's" responses, I have to ask what you meant by their heirs at law. Bob and Thelma's heirs at law? Or the childrens' heirs at law?

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