Distributions and representation: who takes what when a beneficiary died first

The instrument's words control

Texas trusts are governed first by their terms (§111.0035). A clause that says "to my descendants, per stirpes" means what the instrument's definitions say it means, and a clause that names a survivorship condition — "to those of my children who survive me" — means the share of a child who did not survive passes as the clause directs, or as the residuary clause directs, not to that child's children. The trustee's first task is the reading, and the second is to write down why the reading is the one adopted.

Where the instrument defines its own terms, the definitions govern over any statutory default; where it uses a term of art without defining it, Texas law supplies the meaning. Two statutory anchors matter: §112.011, which decides when an after-born or posthumous member joins a class, and the Estates Code's description of distribution by representation, which Texas instruments and courts borrow when the instrument says "per stirpes" and nothing more.

Texas's default: per capita with representation

Estates Code §201.101 provides the state's default description of representation for an intestate estate: relatives who stand in the same degree take per capita — by persons — and the descendants of a deceased member of that degree take, by representation, the share the deceased member would have taken if alive. The division is made at the first generation with living members, and the descendants of a deceased member divide only that member's share. Many Texas instruments adopt the same scheme expressly; others define per stirpes to begin the division at the children's generation whether or not any child survives.

The difference matters only when a whole generation has died: under strict per stirpes the shares are fixed at the children's level even if no child is alive; under per capita with representation the shares are fixed at the first generation with a survivor. The Distribution Calculator on this site shows both outcomes for the same family tree, labeled by Texas's default, so a trustee can see what the instrument's choice of words produces before anyone is paid.

The mechanics the Code allows

Section 113.027 provides that, when distributing trust property or dividing or terminating a trust, a trustee may make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the property for that purpose, and adjust the distribution for resulting differences in valuation. A trustee need not sell everything to divide it — the house to one branch and the brokerage account to another, with a valuation and an equalizing adjustment, is within the section.

Where a taker is a minor or is incapacitated, §113.021 provides the ways a trustee may make the distribution: directly, to a guardian, by applying it for the beneficiary's health, support, maintenance or education, to a custodian under the Texas Uniform Transfers to Minors Act, or by holding it in a separate trust for the beneficiary — with the trustee's receipt a full discharge. Those alternatives are often where the instrument's silence is loudest.

Before the money moves

A distribution that follows a wrong reading is hard to recall: §114.031 lets a trustee recover from a beneficiary who received more than the beneficiary was entitled to, but a trustee who distributed prematurely or to the wrong person has to pursue the recovery. The sequence most Texas trustees follow is a written analysis of the clause, a family tree with dates of death, the calculator's two columns, and — where the branches disagree or the instrument is ambiguous — a construction proceeding under §115.001, which gives the district court jurisdiction to construe the instrument and determine a question arising in the distribution.

A receipt and release under §114.005, signed by a beneficiary with capacity on full information, closes each share once it is paid. TrusteeClear's record holds the analysis, the tree, the calculator's result and the receipts together, so the reasoning can be shown to a beneficiary or to a licensed Texas attorney before anything is irreversible.

Lwa yo, mo pou mo

• Determination of per capita with representation distribution

  § ES.201.101 ↗

  Eksplikasyon klè e senp; tèks egzak lwa a poko ateste nan bibliyotèk nou an. Gade lwa ofisyèl la nan lyen ki anwo a.

• Distributions generally

  § PR.113.027 ↗

  Eksplikasyon klè e senp; tèks egzak lwa a poko ateste nan bibliyotèk nou an. Gade lwa ofisyèl la nan lyen ki anwo a.

• Release of liability by beneficiary

  § PR.114.005 ↗

  Eksplikasyon klè e senp; tèks egzak lwa a poko ateste nan bibliyotèk nou an. Gade lwa ofisyèl la nan lyen ki anwo a.

Kesyon moun poze souvan