What if the Heir Predeceases the Decedent in Texas?

In Texas, if an heir of a person dies before him, what happens to the heir's share of the estate depends on whether the decedent left a will. Heirs commonly include the decedent's children and spouse. Because a will usually leaves instructions for the shares of predeceased heirs, the will's terms determine where the deceased heir's share goes. If the decedent died intestate, or without a valid will, Texas laws decide who inherits the heir's share.

Texas laws allow the decedent to provide for predeceased heirs in his will. The decedent may have provided for an heir's death by directing that a predeceased heir's share should go to the heir's children. The decedent may have decided that a predeceased heir's share shouldn't go to the heir's survivors, but to the rest of the persons inheriting property under the will instead. The executor of the will must follow the will's directions regarding the shares of predeceased heirs.

The estate of a person who died without a will is subject to Texas intestacy rules. In Texas, one-third of the estate of an intestate person belongs to a surviving spouse, with the remaining two-thirds going to his living children; the share of a child that died before his father goes to that child's descendants, or the decedent's grandchildren. If the decedent had no living spouse when he died, his entire estate belongs to his children. If any of his children are deceased, their children inherit their parent's share. If his children died and didn't leave any heirs, his parents inherit his estate equally. However, if one parent died before him, the other parent gets half his estate -- and his siblings get the other half. If both parents died before him, his siblings and the surviving children of his predeceased siblings — his nieces and nephews — share his estate equally.

Any children the decedent adopted are considered his natural children under Texas law. A will still controls what happens if an adopted child dies before the decedent. If the decedent died intestate, the intestacy rules apply to an adopted child the same way the rules apply to a natural child. However, the adopted child's birth parents can't inherit from the child. So if the adopted child dies before the decedent and leaves no children, her birth parents can't inherit her share.

Texas intestacy laws treat an heir of a decedent as a predeceased heir if she dies within 120 hours of the decedent. If it's impossible to determine who died first — for example, if the decedent and the heir were involved in a fatal car accident — the law presumes the heir died before the decedent. The 120-hour rule also applies to heirs in a will, but if the will provided for simultaneous deaths, the will's directions prevail.