When Texans draft wills and name beneficiaries, they expect that the beneficiaries they have named will outlive them. But that is not always the case. Sometimes a beneficiary named in a will dies first.
Most properly drafted wills name a contingent beneficiary in case the named beneficiary predeceases the testator. But in the event that a contingent beneficiary is not named, Section 68 of the Texas Probate Code establishes a backup rule.
Beneficiaries Who Are Descendants of Testator or Testator’s Parents
Generally, if the beneficiary is a descendant of the testator or the testator’s parent, then that beneficiary’s descendants inherit the beneficiary’s share, so long as they survive the testator by 120 hours.
If all the heirs are of the same degree of relationship to the decedent, meaning they are all children, or all grandchildren, then the estate will be distributed in equal shares. However, if they are not of the same generation, for example if children and grandchildren survive, then the younger generation will only be entitled to the that portion of the estate that older generation would have received had they survived.
Beneficiaries Who Are Not Descendant of Testator or Testator’s Parents
Any specific gift to that person who is not a descendant of the testator or the testator’s parents becomes part of the residuary estate and passes to the residuary beneficiary.
If the beneficiary who predeceases the testator is the residuary beneficiary and is not a descendant of the testator or the testator’s parents, that gift will pass as though the testator died intestate.
Section 68 will not apply if a will has language specifying that the gift is contingent on the beneficiary surviving the testator.
For example, suppose Harry has three children, Adam, Bill and Carl, and wills his land to “all my children who survive me.” Suppose also, that Carl has two children, David and Eric.
If Carl predeceases Harry, the land will pass to Adam and Bill only, and Carl’s children would not get his share. If, however, Harry specifies that his land shall pass to “all my children,” then Section 68 applies and Carl’s share would pass to David and Eric.