If my brother was a beneficiary in my mom’s will that has not been probated but he recently passed away, what happens to his shares?. She named us three as her beneficairies

Brother lived in another state and passed w/o will, I did a small estate paid for
funeral and my dad waive to his property. In tx mom passed 3 yrs and left a will
stating my brother to recv 60 of property of her home and to recv promissary
note. What happens now? Do I have to do an affavad of heirship? or probate for
him since he is in my mom’s will? The will state that she has three living
children and is not married.

Asked on March 9, 2016 under Estate Planning, Texas


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Generally speaking, when a member of a group dies before the testator (i.e. maker of a Will) the property goes to the surviving members of the group, unless the Will provides otherwise. Therefore, if the Will provided that the estate "be divided among my children", then it would be split between the surviving siblings. However, if the Will left the property to the children by name, for example, “to John Doe and Jane Smith”, then the gift would not considered a class gift. In that event, the deceased siblings share would go to their benficiaries if they had a Will or to their heirs if they had no Will. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.