RD

KRISTI N. ELSOM
1330 Post Oak Blvd., Suite 2900
Houston , TX 77056
(713) 840-7710 kelsom@fizerbeck. com
Professional
Board Certified in Estate Planning and Probate by the State of Texas
• Fellow of the American College of Trust and Estate Counsel (ACTEC)
• Council Member of the Real Estate, Probate and Trust Law Section of State Bar of Texas
Texas Academy of Probate and Trust Lawyers
State Bar of Texas and Houston Bar Association
College of State Bar of Texas
• Houston Estate and Financial Forum - Board of Directors 2011-2013
Houston Business and Estate Planning Council
The Best Lawyers in America in 2012 and 2013
Education
Juris Doctor, Southern Methodist University, School of Law- 1983
Bachelor of Business Administration, Magna Cum Laude, Southern Methodist University,
Cox School of Business - 1979
Career History
• Fizer, Beck, Webster, Bentley & Scroggins, Houston, Texas 2002- present- Shareholder
• Stubbeman, McRae, Sealy, Laughlin, & Browder, Inc., Midland, Texas- 1983 to 2002- Shareholder
Representative Speaking Events
• State Bar of Texas, Advanced Drafting: Estate Planning & Probate Course- November,
2001/ October, 2008/ October, 2009/ October, 201 0/Course Director- October, 2011
State Bar of Texas, Advanced Estate Planning and Probate Course- June, 2009/ June,
2011
UT- Stanley M. Johanson Estate Planning Workshop - 2010
State Bar of Texas, Webcasts: November, 2008/ March, 2010
South Texas of College of Law, Wills & Probate Institute- 2002, 2007 & 2008, Houston, TX
Brazosport College Foundation - Estate Planning Seminar- 2003-2009, Brazosport, TX
Midland Business and Estate Council - October, 2005
• Southern Arizona Estate Planning Council - September, 2005
• Council for Resource Development, National Conference- December, 2004, Washington, D.C.
Texas Association of Community College Foundations- 2004 Symposium, Austin, TX
Tax Alliance Conference, Houston, Texas - May, 2002, Houston, TX
Current Community Involvement
FMH Foundation - Secretary
South Main Baptist Church Foundation
Greater Houston Community Foundation: Professional Advisors Council
Permian Basin Area Foundation: Marie Hall Scholarship Committee
Junior League of Houston, Inc.: Sustainer
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2
TABLE OF CONTENTS
I.
II.
INTRODUCTION .......................................................................................................................... 1
AS DEFINED .................................................................................................................................. 1
A.
B.
C.
D.
E.
In Case Law ........................................................................................................................ 1
In the Probate and Family Codes ........................................................................................ 2
In Black's ............................................................................................................................. 2
In Wikipedia ........................................................................................................................ 2
In the Document .................................................................................................................. 3
III. RULES YOU NEED TO KEEP IN MIND .................................................................................. 3
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
Who is the child? ................................................................................................................. 3
Establishing the Relationship .............................................................................................. 3
Adopted Child ..................................................................................................................... 4
1. Statutes ................................................................................................................... 4
2. Cases ...................................................................................................................... 4
Adoption by Estoppel. ......................................................................................................... 5
Step-children ....................................................................................................................... 6
Paternity rights of Embryo .................................................................................................. 6
Parental Status of Deceased Donor ..................................................................................... 6
Pretermitted Heirs ............................................................................................................... 6
1. One or more children living when will executed ................................................... 6
2.
3.
No living child when will executed ....................................................................... 6
Other parent is not surviving spouse ...................................................................... 7
4.
5.
Providing for Child ................................................................................................ 7
A voiding the Pretermitted Child Statute ................................................................ 7
Survival ............................................................................................................................... 7
Prior Death of Legatee ........................................................................................................ 7
1.
2.
3.
4.
Devisee is Descendant. .......................................................................................... 7
Non-residuary Devise ............................................................................................ 7
Part of Residuary .................................................................................................... 7
No Residuary Beneficiary Survives ....................................................................... 7
5. Avoiding Application of the Anti-lapse Statute ..................................................... 7
Intestacy- Heirs .................................................................................................................. 8
Relatives ofF ormer Spouse ................................................................................................ 8
Illegitimate .......................................................................................................................... 8
Other Points ........................................................................................................................ 8
1. Murder .................................................................................................................... 9
2.
3.
4.
Conviction .............................................................................................................. 9
Suicide .................................................................................................................... 9
Abandonment or Injury of a Child ......................................................................... 9
IV. DETERMINING SHARES ........................................................................................................... 9
V. DRAFTING EXAMPLES ............................................................................................................. 9
VI. ETHICAL CONSIDERATIONS .................................................................................................. 9
VII. ETHICAL ISSUES WILL ARISE ............................................................................................. 15
VIII. ARTFUL COMMENTS .............................................................................................................. 15
EXHIBIT A - Engagement/Consent Letter
EXHIBIT B - Examples i

DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
Chapter 2
DEFINING DESCENDANTS: BUILDING
THE FAMILY YOU WANT
I. INTRODUCTION
It is easy to grab a form to prepare a document without thinking of each and every term because
"we know what is in the form." Usually it is only when we have to explain a term to a client or to a younger attorney that we reflect on the law and the words chosen to define the term.
For estate planners, the term "descendants" is easily one of the prime terms that we use every day in our documents. The purpose of this outline is to offer a collection of drafting examples using the term "descendants" (and similar words), while noting key cases and statutes that shape the use of the word. (Though some sections are dated by changes in the statutes, an excellent outline on topic is "Who
Are Your Descendants?-Adoption, Half-
Bloods, Surrogates, Etc.," by Barbara B.
Ferguson, Advanced. Estate Planning and
Probate Course, June 1987.)
I want to extend a special note of appreciation to all the attorneys who unselfishly shared their forms and expertise in the preparation of this paper (some of whom are named and others, though not listed, contributed significantly, though silently). This outline is a testimony to the collegiality of the bar (in Texas and in
ACTEC). For young attorneys the lesson is make friendships and don't be afraid to ask someone if you need help. For more mature attorneys, please don't forget the times when someone reached down to help you, and pass that favor forward.
As with all educational outlines of this nature, this outline is not legal advice and the reader should not rely on or use the information contained in the outline without independently verifying its accuracy.
II. AS DEFINED
A. In Case Law.
"As a general rule, and when used in its accurate legal sense, the word 'descendant' signifies the issue of the deceased person." Parrish v. Mills:J.
102 S.W. 184, 188 (Tex. Civ. App. 1907) affd,
101 Tex. 276, 106 S.W. 882 (1908). However,
"in popular usage, the word 'descendants' sometimes includes the issue of a living person," not just the issue of a decedent. In Paschall v.
Bank of America, N A., 260 S.W.3d 707, 710
(Tex. App.-Dallas 2008, no pet. h.).
What does issue mean? "The rule seems well established in Texas that the tenn 'issue' when used in a will, is to be interpreted in its ordinary sense embracing all descendants, especially where there is nothing in the language of the instrument to show that a narrower interpretation was intended." Atkinson v. Kettler, 372 S.W.2d
704 (Ct of Civ. App., Dallas 1963).
If the term "descendants" means "issue", why is one word selected over the other (and the word
"descendants" seems to be the preferred choice of drafters over "issue")? In Texas, it could be because Professor Johanson says so:
"'Descendants' is preferred rather than issue.
First, the client may not know the meaning of issue. Second, issue can be both singular and plural." Johanson, M. Stanley, "Will and Trust
Drafting: English As A Second Language for
Lawyers," 15th Annual Advanced Drafting:
Estate Planning and Probate; October 2004,
League City, Texas, Chapter 10.
Use of the word "issue" in certain forms might solely be because of repeated practice based on one isolated occurrence, such the incident related by estate planning attorney William D.
(Bill) Paragaman of Austin, Texas:
A major law firm (e.g., VE or
Fulbright) was reviewing and updating its will forms. They noticed that their existing wills all used the term "issue," rather than descendants. They started
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT researching why they may have chosen that term in the past, and whether it made a difference. Finally, they connected with a retired partner. He explained that long ago, the firm had a very wealthy, eccentric client who insisted that his will be on one page.
Back in those days, they didn't have unlimited font sizes - you took what you got from the typewriter - but they could minimize margins, eliminated anything unnecessary, etc. But after all of that, it was still just over a page.
Then someone had the bright idea of substituting "issue" everywhere
"descendants" appeared, cutting the characters in half every time it appeared. That did the trick!
Mr. Pargaman doesn't know if the story is true nor remembers the source, but it vividly illustrates two important points in drafting: 1. draft to accomplish the client's goal; and 2. understand why language is used in a form before you use it.
B. In the Probate and Family Codes.
The Texas Probate Code, as amended by Acts
2011, 83rd Leg., eff. Sept. 1, 2011 (referred to herein as the "TPC") does not define
"descendants" as a term, but does define the word "child" in §3(g) and has numerous other provisions that include the word descendants in defining those who will take upon the distribution of an estate.
While the Texas Family Code, as amended by
Acts 2011, 83rd Leg., eff. Sept. 1, 2011 (referred to herein as the "TFC") establishes parental responsibility, it has also has provisions regarding inheritance, some of which seem inconsistent with the TPC. However, if there is a conflict, the TFC is the controlling code pursuant to § 160.002: "If a provision of this chapter conflicts with another provision of this title or another state statute or rule and the conflict cannot be reconciled, this chapter prevails." Again, like the TPC, the word
"descendant" is not defined in the TFC but
Chapter 2 numerous provisions regulate who is deemed the parent of the child.
C. In Black's.
The Black's Online Legal Dictionary, 2nd Edition
(the one the client will be using) defines descendant as: "One who is descended from another; a person who proceeds from the body of another, such as a child, grandchild, etc., to the remotest degree. The term is the opposite of
'ascendant."' The entry further advises the reader (again the client) that the word
"[d]escendants is a good term of description in a will, and includes all who proceed from the body of the person named; as grandchildren and greatgrandchildren."
D. In Wikipedia.
This internet "primary" resource Wikipedia (as of October 7, 2012) offers numerous potentially more interesting search options (short film, movie, astrological, novel, and punk rock band) in addition to the legal application:
A lineal descendant, in legal usage, refers to a blood relative in the direct line of descent the children, grandchildren, great-grandchildren, etc. of a person.
Adopted children, for whom adoption statutes create the same rights of heirship as children of the body, come within the meaning of the term "lineal descendants," as used in a statute providing for the non-lapse of a devise where the devisee predeceases the testator but leaves lineal descendants.
Among Native American tribes in the
United States, tribal enrollment can be determined by lineal descent, as opposed to a mmtmum blood quantum. Lineal descent means that anyone directly descended from original tribal enrollees could be eligible for tribal enrollment, regardless of how much Indian blood they have.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
E. In the Document.
"A person of sound mind has a perfect legal right to dispose of his property as he wishes, .... "
Rothermel v. Duncan, 369 S.W.2d 917 (Tex.
1963). Testators may give the term
"descendants" a different meaning than what it would have meant under applicable rules of descent and distribution. Schuwirth v. Reutzel,
219 S.W.2d 739 (Tex. Civ. App. - San Antonio
1949, no writ). Accordingly, understanding the rules of law and how those rules apply to the facts concerning the intended beneficiaries and the client, the attorney can draft a definition of the word "descendants" to mean those persons the client wishes to take under the dispositive document. Additionally, a testamentary instrument can direct how property will not be distributed. See §§3 (ff) and 58(b) of the TPC.
III. RULES YOU NEED TO KEEP IN
MIND
Drafting to identify the right person or persons the client intends to benefit does require thought as to the rules that will or might affect the words chosen in the document.
A. Who is the child?
The TPC defines "child" as "including an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel, but, unless expressly so stated herein, does not include a child who has no presumed father." §3(b) of the TPC. Due to the mandate in by the Federal statutes, Texas adopted the
Uniform Parentage Act in 2001, the focus of which appears to be to establish the parental, especially the father, relationship and responsibility with the child. Prior versions of
§42 of the TPC prohibited a child from inheriting from his father unless the child was born during marriage or otherwise legitimatized by decree or a statement of paternity. Now a child whose parents are not married "has the same rights under the law as a child born to parents who are married to each other."
§ 160.202 of the TFC.
Chapter 2
B. Establishing the Relationship
There are provisions in both the TPC and the
TFC that define and formally provide how the relationship between the parent and the child is created. The ways a parent/child relationship can be formed are: a. Biologically maternity as provided in
§42(a) of the TPC and referred to as giving birth in § 160.201(a)(l) of the TFC; and paternity as provided in §42 (b) of the TPC
"if the child is born under circumstances described by Section 160.201, Family
Code," (which includes presumption, acknowledgment, adjudication or under the rules for assisted reproduction), or is adopted by the father. b. Adoption - either parent as provided in §40 of the TPC and §160.201 (a)(3) and (b)(4) of the TFC; and maternity only as provided in §42(a) of the TPC. c. Acknowledged paternity only, as provided in §42(b) of the TPC and
§ 160.201(b)(2) of the TFC. d. Adjudicated paternity as provided in
§42(b) of the TPC and either parent as provided in §§ 160.201(a)(2) and (b)(3) and
160.753 of the TFC (as to gestational agreement). e. Presumption - paternity as provided in § §
160.201(b)(1) and 160.204 of the TFC
(generally in situations when man is in a married relationship with the mother of the child, but also when living in the household with child during the first two years of the child's life and holding child out to be the man's child). f. Assisted Reproduction paternity as provided in §160.201(b)(5) and §160.703 of the TFC (for a married man) or
§160.7031 of the TFC (for an unmarried man by consent). g. Gestational Agreement- § 160.752(b) of the
TFC controls over any other law regarding
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT a child conceived under a gestational agreement, which the intended parents must be married to each other.
C. Adopted Child
1. Statutes
For purposes of descent and distribution, an adopted child and "its descendants" shall inherit from and through the adoptive parent(s) and such parent(s) kin "the same as if the child were the natural child of such" parent(s). §40 of the
TPC. Similarly, the adoptive parent(s) and kin of such parent(s) will inherit from and through the adopted child. The natural parent( s) of the adopted child will not inherit from or through the adopted child. But, unless the child was adopted as an adult as provided in §162.507(c) of the TFC, the child shall inherit from and through his or her natural parent(s). However, the provisions in §40 of the TPC do not "prevent any parent by adoption from disposing of his property by will according to law." Id. Further,
Section 40 of the TPC "relating to the rights of adopted children shall in no way diminish the rights of such children, under the laws of descent and distribution or otherwise, which they acquire by virtue of their inclusion in the definition of
'child' which is contained in" the Texas Probate
Code. Id.
The Family Code in § 162.0 17(b) provides the
"adopted child is entitled to inherit from and through the child's adoptive parents as though the child were the biological child of the parents." Nothing is said of the inheritance rights ofthe adopted child's descendants.
There is a provision regarding the termination of parental rights in § 161.206 of the TFC that confirms the adopted child retains the right to inherit from the and through the parent whose parental rights were terminated unless the court otherwise provides. Apparently, for purposes of privacy and protection of the birth and adoptive parents, the courts regularly terminate the inheritance right of a child adopted at birth or a young age.
Chapter 2
The adopted child during the natural (former) parent's lifetime is not treated as born to or adopted by the natural parent, but at death the relationship is recognized.
Unless clearly indicated otherwise, the use of the terms "child," "descendant," and "issue," shall include adopted children. § 162.01 7 (c) of the
TFC.
2. Cases a. Adopted Adult
In Lehman v. Corpus Christi Nat'! Bank, 668
S.W.2d 687 (1984), the Supreme Court considered whether or not an adopted 26-yearold stepchild qualified as a "descendant" under the terms of the will of his adoptive father's father. The trust created by the adoptive father's will provided the term "'descendants' shall include the children of the person designated, and the issue of such children, and such children and issue shall always include those who are adopted."
The court looked at the statutes of 1966 (year the father of the adoptive father executed his will) and found that the legislative history stated "an adopted child was 'for every purpose, the child of his parent or parents by adoption as fully as though born of them in lawful wedlock."' Id. at
689.
The court determined that the terms "child" or
"children" when used in a testamentary instrument ordinarily cover sons and daughters of whatever age. The court found that under the definition of descendants, there was no age distinction between natural and adopted children from a class of beneficiaries. Accordingly, the adopted 26-year-old stepchild qualified as a descendant. b. Adopted Adult Through the Adopted
Parents
In the case of Armstrong v. Hixon, 206 S.W.3d
175 (Tex. App.-Corpus Christi 2006, writ denied) the court considered whether or not the adult-adoptee of a collateral relative could
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT inherit under the terms of a will. The testator,
Torn Armstrong died without children and his will directed it to go to the children of his brother. One of Torn's nieces had adopted an adult.
The court construed the will under the laws in effect 1964, the year the will was executed. The court provided statutory language analysis to determine that "for every purpose" did not mean the equivalent of "from and through." The court held that "provided that an individual adopted as an adult was a child of the adopting parents for all purposes and could inherit from them, but the law {in 1964} did not then suggest that the adopted adult could also inherit 'through' the adoptive parents." The court distinguished the matter from Lehman because the will in Lehman clearly and expressly contained language that descendants would include those who are adopted. Accordingly, the adopted adult was not deemed a beneficiary under the residuary trust of her adopted mother's uncle. c. Adopted Adults Not Included
In re Ray Ellison Grandchildren Trust, 206
S.W.3d 175 (Tex. App-San Antonio 2008, writ denied), after considering the intent of the grantor in 1982 when the trust instrument was written, the court looked at the intestacy statute of 1975 to conclude the grantor did not intend the term descendants to include persons adopted as adults. The court distinguished the matter from Lehman v. Cmpus Christi Nat'! Bank, because "the will at issue in Lehman specifically included adoptees as descendants, with no age distinction between children and adults."
Consequently, the adopted children did not qualify as descendants under the terms of the trust. d. Descendents of Adopted Child Excluded
In his Will, testator defined his children by name and his descendants as:
... in addition to any definition set forth in Article I, lineal blood descendants of the first, second or any other degree of the ancestor
Chapter 2 designated; provided, however, such references shall include, with respect to any provtston of this Will, descendants who have been conceived at any specific point in time relevant to such provision and who thereafter survive birth; and provided, further, an adopted child and such adopted child's lineal descendants by blood or adoption shall be considered under my
Will as lineal blood descendants of the adopting parent or parents and of anyone who is by blood or adoption a lineal ancestor of the adopting parent or of either of the adopting parents.
In re Estate of Tyner, 292 S.W.3d 179 (Tex.
App.-Tyler 2009, no pet.).
The court found that within the context of the will, the testator did not intend for the biological child of his predeceased adopted child to be considered a descendant. The court concluded that the testator intended to limit the term descendants to only the children and adopted children of the two children named in the will.
D. Adoption by Estoppel
"Adoption by estoppel is a remedy applied when efforts to adopt are ineffective because of failure to strictly comply with statutory adoption procedures or because, out of neglect or design, an agreement to adopt is not performed." In re
Estate of Charles Eric Whiting, Deceased, 2011
WL 4825886 (Court of Appeals of Texas, San
Antonio 2008). Also see Heien v. Crabtree,369
S.W.2d (Tex. 1963). The effect of an adoption by estoppel does not terminate the parental rights of the birth parents and the birth parents cannot inherit from the "adoptive parents" through such child. Asbeck v. Asbeck, 362
S.W.2d 891 (Tex. Civ. App.- Texarkana 1962), affd 369 S.W.2d915 (Tex. 1963).
In Carpenter v. Carpenter, 2011 WL 5118802
(Tex. App.- Fort Worth. 2011), the trust stated that upon dissolution, its assets would be distributed to the seven beneficiaries named in the trust, or, if any of those people were deceased, "the descendants of such deceased
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
[beneficiaries], per stirpes." The question here is what the term "descendants" means. The court concluded that the term "descendant" as used in the trust meant "'one who follows in lineage, in direct (not collateral) descent from a person."'
However, "as a matter of law, the term
'descendant' does not include equitably adopted children."
E. Step-children
Section 69 of the TPC provides that if divorce occurs after the making of a Will, all provisions and fiduciary appointments to the former spouse and each relative of the former spouse that is not related to the testator shall be deemed to have predeceased the testator unless the will expressly provides otherwise. Prior to the amendment of§
69 of the TPC, only the former spouse was deemed to not to have survived the testator. See
In re Estate of Nash, 220 S.W.3d 914 (Tex.
2007).
F. Paternity rights of Embryo
A child was born from a frozen embryo after the parents divorced. The mother argued that the father lost his paternity rights after the divorce because they did not decide what to do with the embryo. The father was named as the father on the birth certificate and signed a statement of paternity. The court held he was entitled to paternity rights. In re Olivia Grace McGill,
(Tex. Ct. App. 1999). See §160.706 ofthe TFC regarding divorce before placement of eggs, sperm, or embryos.
G. Parental Status of Deceased Donor
Under the Texas- Family Code §160.707 addresses the situation when one spouse dies before placement of eggs, sperm, or embryos, acquired through assisted reproduction. Unless the deceased spouse consented in a record retained by the physician otherwise, the deceased is not the parent of the resulting child from assisted reproduction occurring after death.
However, there is no similar provision safeguarding an unmarried man. See § 160.7031 of the TFC regarding consent of unmarried man to assisted reproduction.
Chapter 2
The 2012 Supreme Court case of Astrue v.
Capato, concluded that twins born 18 months after the death of their biological father do not qualify for Social Security benefits afforded to children. 566 U.S._ (S.Ct. 2012). The Court relied on the Florida intestacy law to determine whether or not such twins were the children of the deceased wage earner.
H. Pretermitted Heirs
" [A} child of a testator who, during the lifetime of the testator, or after his death, is born or adopted after the execution of the will of the testator" is a pretermitted child. §67 of the TPC.
The statute takes the position the omission was a mistake, and remedies the error. In re Estate of
Hendler, 316 S.W.3d 703 (Tex. App.- Dallas
2010, no writ). A pretermitted child will take a portion of the testator's estate if such child was not mentioned in the will or otherwise provided for by the testator.
1. One or more children living when will executed.
If the testator has children when the will was executed, and then has a child thereafter: a. If no provision was made in the will for any of the children, the pretermitted child receives from the testator's estate not given to the other parent of the pretermitted child, what such child would take under §38 of
TPC. §67(a)(l)(A) ofthe TPC. b. If provision was made in the will for any of the testator's children, the pretermitted child shares equally with the other children.
§67(a)(1)(B) ofthe TPC.
2. No living child when will executed.
If the testator has no children when he executes his will, the pretermitted child takes his intestate share of the estate under §38 of TPC of the testator's estate not given to the other parent of the pretermitted child. §67(a)(2) ofthe TPC.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
3. Other parent is not surviving spouse.
If the pretermitted child's other parent is not the surviving spouse of the testator, the share awarded to the pretermitted child under §67 will not reduce the surviving spouse's portion by more than one-half. §67(e) ofthe TPC.
4. Providing for Child.
If the pretermitted child receives property or benefit (in testator's will or outside the will), no share is given to such child under § 67 of the
TPC. See Estate of Gorski v. Welch, 993
S.W.2d 298 (Tex. App. - San Antonio 1999,
writ denied) and In re Estate of Hendler, supra.
5. A voiding the Pretermitted Child Statute.
Application of § 67 of the TPC can be avoided by inclusion in the definition of children in the will "afterbom and adopted children."
I. Survival
Section 4 7 of the TPC requires a beneficiary to survive the decedent by 120 hours unless the will, trust, deed, insurance or other fonn for disposition of property provides otherwise.
Unless the will contains "some language dealing explicitly with simultaneous death or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will," a devisee who does not survive the testator by 120 hours is deemed to have predeceased the testator. §47(c) ofthe TPC.
J. Prior Death of Legatee
Section 68 of the TPC provides for the distribution of a bequest/devise when the beneficiary named in the will fails to survive the testator.
1 . Devisee is Descendant.
If a descendant of the testator or a descendant of a testator's parent who is a devisee under a will fails to survive as defined in the anti-lapse provisions of §68(a) of the TPC, the devise
Chapter 2 passes to the devisee's descendants who survive under §47 of the TPC (120 hours). This statute applies when the descendant/devisee: (a) is deceased at the time the will was executed; (b) fails to survive the testator; or (c) fails to survive the testator by 120 hours in accordance with §4 7 of the TPC.
2. Non-residuary Devise.
If §68(a) of the TPC does not apply, and a devise/bequest fails for any reason, then such gift becomes a part of the residuary estate.
§68(b) ofthe TPC.
3. Part of Residuary.
Again, if §68(a) of the TPC does not apply, and the residuary estate passes "to two or more persons and the share of one of the residuary devisee's fails for any reason, the residuary devisee's share passes to the other residuary devisees, in proportion to the residuary devisee's interest in the residuary estate." §68( c) of the
TPC.
4. No Residuary Beneficiary Survives.
Again, if §68(a) of the TPC does not apply, if all of the residuary devisees "are dead at the time of the execution of the will, fail to survive the testator, or are treated as if they predeceased the testator, the residuary estate passes as if the testator had died intestate." §68(d) of the TPC.
5. Avoiding Application of the Anti-lapse
Statute.
The provisions of §68 of the TPC do not apply if the will provides otherwise. "For example, a devise or bequest in the testator's will such as 'to my surviving children' or 'to such of my children as shall survive me' prevents the application of
Subsection (a) of this section." §68(e) of the
TPC.
In Lacis v. Lacis, 355 S.W.3d 727 (Tex. App.-
Houston [1st Dist] 2011, writ dism, w.o.j.), the descendants of the testator's deceased children were seeking to have §68(a) of the TPC to apply to a devise under the testator's will, instead of
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT the devise passing under the residuary clause. In the case the testator ("Uldis") "specifically stated that the residuary estate would include 'all property in which I may have any interest
(including lapsed gifts) .... "' Id at 733. Reversing the trial court, the appellate court concluded:
Here, Uldis granted specific legacies and devises to his two children in
Articles III and V without stating what would occur should they predecease him. Later in the will, in Paragraph
9.3, Uldis stated that his residuary estate was to include "all property in which I may have any interest
(including lapsed gifts) .... " Given the commonly assigned legal meaning to the term "lapsed," the inclusion of this language indicates that Uldis contemplated that the specific gifts granted in Articles III and V could lapse. The language demonstrates
Uldis's intention that should they lapse, the gifts would become part of his residuary estate. Application of the
Anti-Lapse Statute would require us to ignore how Uldis expressly defined his residuary estate and presume that he intended for the specific bequests in
Articles III and V to pass to his grandchildren should his children predecease him. In light of the express language in Uldis's will, we decline to do so.
!d. at 736.
K. Intestacy - Heirs
The focus of this paper is to draft the instrument to avoid intestacy. The Supreme Court in
Lehman v. Corpus Christi Nat'! Bank, supra at p.
689 stated:
The laws of descent and distribution have no effect on the passing of property under a will, and are of little interpretive help. In fact, one reason a person executes a will is to modify or abrogate the way his property would pass by the laws of intestacy. As a
Chapter 2 result, construing a will in accordance with the intestacy statutes may actually be intent-defeating.
However, the incorporation of the rules of descent and distribution may be the best way to identify the beneficiaries. Section 3 8 of the
Texas Probate Code identifies the takers of the separate property estate of a person who dies intestate (while § 45 of the TPC addresses community property). Usually, the term "heirs at law" is used to describe the persons to take under a will after all the other specifically named beneficiaries have failed to survive the testator. In the context of the testator, only the testator's spouse, and not the spouse of any descendant, collateral or more remote relatives are included among the heirs. However, if the term is used in relation to another person, such as the "heirs at law of my son", then the son's spouse would be an heir. See Power v.
Landram, 464 S.W.2d 99 (Tex. 1970).
L. Relatives of Former Spouse
All provisions in a will executed before the dissolution of the testator's marriage "shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise." §69(b) of the TPC.
M. Illegitimate
"The question really becomes whether or not an illegitimate child is included within the definition of 'children born to his body'. It has been held by the Supreme Court of Texas that the term 'child', or 'issue', or 'children', without more, does not include illegitimate children.
Hayworth v. Williams, 102 Tex. 308, 116 S.W.
43 (1909)." Tindol v. McCoy, 535 S.W.2d 745,
751 (Tex. Civ. App.-Corpus Christi 1976, writ refd n.r.e ).
N. Other Points
There are a number of other key rules to keep in mind.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
1. Murder.
If a person murders the decedent, §41 (d) of the
TPC prevents such person from benefiting from a life insurance policy covering the decedent's life. See §1103.151 of the Texas Insurance
Code. As to the other assets of the murdered decedent's estate that the convicted murderer might inherit, a constructive trust will be imposed under equitable principle. However, there is no forfeiture if the death of the decedent was by casualty.
2. Conviction.
A person convicted of a crime other than the murder of the decedent as discussed above, does not lose their inheritance. § 41 (d) of the TPC.
3. Suicide.
"[T]he the estates of those who destroy their own lives shall descend or vest as in the case of natural death." §41 (d) of the TPC.
4. Abandonment or Injury of a Child.
A parent of a child under age 18 years may be disinherited for purpose of the laws of descent and distribution by an order of a probate code finding the parent has: a. Voluntarily abandoned and failed to support the child for at least 3 years before the child's death; b. Voluntarily and with knowledge of the pregnancy, abandoned the child's mother during the pregnancy and remained apart from and failed to support the child after birth; c. Been convicted or placed on community supervision for being criminally responsible for the death or serious injury off! child of specified sections of the Texas Penal Code.
§41 (e) of the TPC. Notice there is a distinction made in paragraphs (a) and (b) addressing "the child" compared to paragraph (c) above referring to "a child."
Chapter 2
IV. DETERMINING SHARES
Often the definition of descendants in a document includes how the gift to those persons will be distributed. While the division of the gift is not the subject of this paper, some of the drafting examples attached include the distribution scheme. Section 43 of the Texas
Probate Code provides a division known as per capita with representation, to be compared to a strict "per stirpes" or by the roots scheme.
V. DRAFTING EXAMPLES
Finally, attached are drafting examples gleaned from attorneys across the country. Authorship is noted unless contributor requested otherwise.
VI. ETHICAL CONSIDERATIONS
[The following material is an excerpt from
"Joint Representation is a Revolving Door -
Avoid the Crush" by Michael V. Bourland,
David P. Dunning and Jeffrey N. Meyers, 21st
Annual Entertainment Law Institute, October
20-21, 2011, Austin, TX, Chapter 6.3, pages 6-
11, and 16-18, which has been reproduced with the permission of the authors. The numbering from the original article has been preserved so the references will remain intact.]
I. Introduction/Texas Disciplinary Rules of
Professional Conduct
A lawyer practicing in the areas of estate planning and family business planning must be knowledgeable in the laws of taxation, property, and trusts. However, the prudent estate and family business planning lawyer cannot stop there; in addition, he must have a thorough understanding of the rules regulating lawyer conduct.
Rules regulating lawyer conduct arise from several different sources including i) common law (i.e. tort law, fiduciary law, agency law), ii) criminal law, and iii) the rules of evidence. This presentation, however, focuses on the regulation of lawyer conduct under the Texas Disciplinary
Rules of Professional Conduct ("TDRPC"). In particular, this presentation discusses certain
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT rules ("Rules") of the TDRPC that will likely affect the estate and family business planning lawyer. This presentation neither discusses all of the Rules contained in the TDRPC, nor does it address every provision of a particular Rule.
Accordingly, a lawyer should refer to the actual text of the TDRPC, including the Comments, for more comprehensive guidance. The TDRPC are found at Title 2, Subtitle G, Appendix A, Article
X, Section 9 of the Government Code and became effective as of January 1, 1990.
[Note: Occasional references are made to counterpart rules contained in the American Bar
Association Model Rules of Professional
Conduct (the "ABA Model Rules"). The ABA
Model Rules are the blueprint for the TDRPC; however there are some important differences between them.]
The violation of a Rule may subject a lawyer to disciplinary action. In addition, although the
Preamble to the TDRPC expressly states that the violation of a Rule does not give rise to a private cause of action against a lawyer or create a presumption that a lawyer has breached a legal duty to a client, a court may look to the TDRPC for guidance in determining whether a lawyer has committed malpractice or otherwise breached a legal duty to a client.
II. Duty of Communication/Rule 1.03
Rule 1.03 imposes a duty of communication on a lawyer. The purpose of the Rule is to ensure that a client has sufficient information to make intelligent decisions regarding the representation. A lawyer's duty of communication under Rule 1.03 has three basic elements: i) to keep the client reasonably informed about the status of the representation; ii) to promptly comply with reasonable client requests for information regarding the representation; and iii) to reasonably explain the legal matter so that the client can make informed decisions regarding the representation.
1. The standard of compliance with all three duties is reasonableness; the lawyer must make a reasonable effort to communicate with the client so that the client may be able
Chapter 2 to actively participate in the representation and make informed decisions. The question of whether a lawyer has acted reasonably is ordinarily a question of fact. ROBERT P.
SCHUWERK & JOHN F. SUTTON, JR., A
GUIDE TO THE TEXAS DISCIPLINARY
RULES OF PROFESSIONAL CONDUCT
54 (1990).
2. A lawyer should keep in mind four basic principles underlying the communication requirements of Rule 1. 03. SCHUWERK at
57-59. a. The communication must be truthful. b. Explanations given by the lawyer should be in terms that the client can understand. Further, Comment 5 encourages lawyers to make a reasonable attempt to communicate directly with clients who are minors or mentally disabled, in addition to consulting representative. with the client's c. The lawyer must give comprehensive advice concerning all possible options including the potential risks associated with each option. d. In the litigation context, the lawyer's duty to communicate does not end with a judgment, but also includes informing a client about appeal matters, including the client's right to appeal and the relative advantages and disadvantages of an appeal.
3. ABA Model Rule 1.4 is the ABA counterpart to Rule 1.03 of the TDRPC.
III. Duty Of Confidentiality/Rule 1.05
Rule 1.05 imposes a duty of confidentiality on a lawyer. Subject to certain exceptions and limitations, this Rule generally prohibits a lawyer from knowingly disclosing or using
"confidential infonnation" of a client or former client. The purposes of the Rule are: (a) to encourage people to seek professional legal
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT counsel for their legal problems and questions by providing assurance that communications with their legal counsel will be kept in strict confidence, and (b) to promote the free exchange of information between the client and the lawyer so that the lawyer is equipped with all of the information necessary to provide effective representation.
1. Confidential information is broadly defined to include: i) "privileged information" client information protected by the lawyerclient privilege under Rule 503 of the Texas
Rules of Evidence, Rule 503 of the Texas
Rules of Criminal Evidence, and Rule 501 of the Federal Rules of Evidence and ii)
"unprivileged information" - all other client information (other than privileged information) acquired by the lawyer during the course of, or by reason of, the representation.
2. Rule 1.05 contains several exceptions whereby a lawyer may (discretionary disclosures) or even must (mandatory disclosures) disclose confidential client information. In particular, a lawyer may disclose confidential information: i) if the client (or former client) consents after consultation; ii) if the lawyer reasonably believes that disclosure is necessary to comply with the law or a court order; iii) to enforce a claim by the lawyer against the client (i.e. claim for attorney's fees for legal services rendered); iv) to establish a defense to a malpractice claim asserted by the client; and v) to prevent the client from committing a crime or fraud. Furthermore, a lawyer must disclose confidential information if such confidential information clearly establishes that a client is likely to engage in criminal/fraudulent conduct that will likely kill or inflict substantial bodily harm on another. [NOTE: See Rule 1.05 and the accompanying Comment for additional discretionary and mandatory disclosures]. In the event a lawyer decides to disclose confidential information adverse to the client, the lawyer should only disclose such information as is necessary to accomplish the authorized purpose of the disclosure.
Chapter 2
3. ABA Model Rule 1.6 is the ABA counterpart to the TDRPC Rule 1.05.
IV. Duty of Loyalty
The TDRPC impose a duty of loyalty on a lawyer in that it generally prohibits a lawyer from representing conflicting interests. Rules
1.06-1.13 of the TDRPC address various situations involving conflicting interests.
A. Rule 1.06 Conflict of Interest: General
Rule
Rule 1.06 is the general conflict of interest rule.
It establishes three (3) basic types of conflict situations. First, a conflict exists if the lawyer undertakes to represent opposing parties to the same litigation. Second, a conflict exists if the representation of a client (or prospective client) involves a substantially related matter in which that client's (or prospective client's) interests are materially and directly adverse to the interests of another client of the lawyer. Third, a conflict exists if the representation of a client (or prospective client) reasonably appears to be or become adversely limited by the lawyer's responsibilities to another client or to a third party, or by the lawyer's own interests. A representation involving the first type of conflict described above is never permissible. However a representation involving either the second or third type of conflict described above is permissible but only if: 1) the lawyer reasonably believes that the representation of each client (or prospective client) will not be materially affected AND 2) each affected or potentially affected client (or prospective client) consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved.
1. Comment 15 to Rule 1.06 contemplates conflicts occurring in estate planning and estate administration:
"Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest administration it may be unclear whether the client is the fiduciary or is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved." may arise. In estate
2. Comment 13 recognizes that conflicts of interest in the non-litigation context (i.e. estate planning and family business planning) may be difficult to assess.
Relevant factors to consider include: a) the length and intimacy of the lawyer-client relationships involved, b) the functions being performed by the lawyer, c) the likelihood that a conflict will actually arise, and d) the probable harm to the client or clients involved if the conflict actually arises. The question is often one of proximity and degree.
3. Comment 6 states that the representation of one client is "directly adverse" to the representation of another client if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client. The dual representation also is directly adverse if the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not constitute the representation of directly adverse interests.
However, common sense may deem such dual representation inadvisable depending upon the extent of competition between the clients.
4. Although not required by Rule 1.06, a prudent lawyer will make sure that a conflict
Chapter 2 disclosure and a client's consent to the representation are set forth in writing and signed by each of the clients (or prospective clients). See Rule 1.06/Comment 8.
5. A conflict that prevents a lawyer from representing a person also prevents every other lawyer at the firm from doing so.
6. ABA Model Rule 1. 7 is the ABA counterpart to Rule 1.06 of the TDRPC.
Also, ABA Model Rule 1.8 sets forth certain specific rules relating to current client conflicts, and ABA Model Rule 1.18 addresses a lawyer's duties to prospective clients, including avoiding conflicts with prospective clients.
B. Rule 1.07 Conflict of Interest:
Intermediary
1. Generally
Rule 1.07 governs a situation in which the lawyer acts as an intermediary by jointly representing multiple clients in the same matter.
The intermediary form of representation (or joint representation) is possible where the joint clients have common goals and interests that outweigh potential conflicting interests. The role of the lawyer is to develop these common goals and interests on a mutually advantageous basiswith the end result being that everybody "wins".
Examples of this type of joint representation include: assisting multiple persons in the formation of a jointly owned business enterprise, or performing estate planning for a husband and wife.
2. Role of the Lawyer-Intermediary
In acting as an intermediary, the lawyer assumes a special role. Rather than acting in partisan manner, advocating for the interests of one person only, the role of the lawyer-intermediary is to promote the interests of all of the joint clients-with the goal of achieving a resolution that benefits everyone. At the beginning of the intermediation Goint representation), each client should be advised of the lawyer's special role in the intermediation.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
3. Intermediation (Joint Representation)
Requirements
A lawyer may not undertake an intermediary representation/joint representation unless all of the following conditions are satisfied:
( 1) the lawyer consults with each client concerning the implications of the joint representation, including the advantages and risks involved, and the effect on the attorney-client privileges;
(2) the lawyer obtains each client's written consent to the joint representation; and
(3) the lawyer reasonably believes that:
(a) the matter can be resolved without the necessity of contested litigation on terms compatible with the clients' best interests,
(b) each client will be able to make adequately informed decisions in the matter,
(c) there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful, and
(d) the joint representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients. Rule
I.07(a).
4. Evaluating the Propriety of Intermediation
(Joint Representation)
In evaluating whether a particular legal matter is appropriate for a joint representation, a lawyer should remember the following: A lawyer may never represent opposing parties to the same litigation. Rule I.06(a). In addition, a lawyer cannot undertake a joint representation if contested litigation between the parties is reasonably expected or if contentious negotiations are contemplated. See Rule
I. 0 7 If definite antagonism already
Chapter 2 exists between parties, the lawyer should strongly consider declining joint representation because the possibility that the parties' interests can be adjusted by the joint representation is not very good. See Rule I.07/Comment 4. Finally, as discussed below in more detail, the lawyer needs to consider the impact the joint representation will have on confidentiality of information and the attorney client privilege. See Rule
I. 07 /Comment 5. If the lawyer concludes that
Rule 1.07 prohibits him from acting as an intermediary in a legal matter, then all of the lawyers in the same firm would also be disqualified. Rule I.07(e).
5. Confidentiality/ Attorney-Client Privilege
In a joint representation, there are no secrets. All information obtained by the lawyer from whatever source (third parties, one of the clients, the lawyer's own investigations, etc.) that would help the clients make informed decisions regarding the common legal matter should be disclosed to each of the clients. Moreover, in the event litigation subsequently arises between the clients concerning the common legal matter, the attorney-client privilege will likely not protect any of the communications between the lawyer and any of the clients concerning such legal matter. Before undertaking the joint representation, each of the clients should be advised of the effect that the joint representation will have concerning confidentiality and the attorney-privilege.
6. Ongoing Consultation
In carrying-out the joint representation, the lawyer must regularly consult with each of the clients regarding the decisions to be made and the considerations relevant in making them so that each client can make adequately informed decisions. Rule I.07(b). However, because the lawyer is not advocating for a particular client, each of the clients will have to assume a more active role in the decision making process.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
7. Termination of Intermediation (Joint
Representation)
A lawyer must withdraw as an intermediary if any of the clients requests or if any of the requirements for serving as an intermediary cease to exist. The withdrawal must be a complete withdrawal, meaning that the lawyer cannot represent any of the clients in the legal matter subject to the joint representation. Rule
1.07(c). Furthermore, arguably the lawyer's continued representation of some of the clients would be improper even with the consent of all of the clients involved in the joint representation. The break-down of the joint representation can be disastrous for everyone
(i.e. the lawyer and the clients) because the situation has probably deteriorated to the point where each of the clients will need to obtain separate legal counsel and the lawyer who served as the intermediary may face complaints from one or more of the joint clients.
8. See Sample Consent Letter to Joint
Representation in the Formation of an Entity and Sample Consent Letter to Joint
Representation of Husband and Wife for
Estate Planning. [Letter is attached as an
Exhibit.]
9. ABA Model Rule 1.7 is the ABA counterpart to Rule 1.07 of the TDRPC.
***
V. Family Representation Matters and
Attorney-Client Privilege
The TDRPC apply to all types of representations
(i.e. litigation work, transactional work, etc.).
However, the Rules are more easily applied in some types of representations than others. Estate and family business planning is one area where a practitioner is likely to struggle with the
TDRPC. The notion of a "family lawyer" permeates the fields of estate and family business planning. Often, the "family lawyer" is called upon to represent multiple family members with varying plans, goals and interests.
The multiplicity of individuals and goals inherent in family representation gives rise to
Chapter 2 ethical problems and legal problems in two main areas-confidentiality and conflicting interests.
For many practitioners, the most common type of family representation is the representation of a husband and wife for estate planning. In the context of estate planning for a husband and wife, three basic models of representation have been proposed by commentators and practitioners for addressing confidentiality and conflicting interests concerns 1) joint representation (i.e. the open relationship), 2) separate representation (i.e. the closed relationship), and 3) independent representation.
In a joint representation or open relationship, the same lawyer represents the husband and wife jointly. The husband, wife, and lawyer work together as a team to implement a coordinated estate plan. There are no secrets in a joint representation, and any information and communications relevant to the joint representation disclosed to the lawyer by one spouse should be disclosed by the lawyer to the other spouse. Furthermore, in the event litigation subsequently arises between the husband and wife involving such estate planning matters, the attorney-client evidentiary privilege would not apply. See Rule 503( d) of the Texas Rules of
Evidence for exceptions to the attorney-client privilege including fraud, claimants through the same deceased client, documents attested to by the lawyer, and joint clients. (NOTE: The attorney-client evidentiary privilege would continue to apply, however, to litigation between the husband/wife, on the one hand, and outside third parties on the other hand). A joint representation may discourage both the husband and wife from fully confiding in the lawyer because they know that anything disclosed that is relevant to the joint representation may be disclosed to the other spouse. Nevertheless, the joint representation model is probably the most common form of representation of husband and wife for estate planning purposes.
Like the joint representation model, in a separate representation or closed relationship, the same lawyer represents both the husband and the wife in the estate planning process. However, in a separate representation, the husband and wife
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT are each regarded as separate and distinct clients of the lawyer. Because the lawyer regards the husband and wife as separate clients, the lawyer must not disclose the confidences of one spouse to the other spouse. This puts the lawyer at risk of being caught in the unenviable position of learning information from one spouse that would be important to the other spouse in formulating his or her estate plan. However, the lawyer would not be permitted to disclose such information to the other spouse because of the duty of confidentiality owing to the disclosing spouse and consequently the attorney-client privilege should apply to such information. It is important to note that there is disagreement among commentators about the propriety of the separate representation model. The practitioner should carefully review applicable rules and regulations representation. before undertaking such
In an independent representation, the husband and wife are each represented by different legal counsel. This form of representation ensures that each spouse has his or her own counsel
"looking-out" solely for the interests of that spouse. It further protects the confidentiality and attorney-client privilege of communications between a spouse and his or her lawyer. From the lawyer's perspective, independent representation is the safest form of representation in terms of avoiding conflict and confidentiality issues. A major drawback of this form of representation, however, is that it is more costly and less efficient than the other forms of representation in which only one lawyer is retained.
It is very important that the lawyer discuss each of the forms of representation described above with the husband and wife at the very beginning, along with the advantages and disadvantages of each form, and let the husband and wife select the form of representation that will best suit their needs. In the event the husband and wife select either the joint representation (i.e. open relationship) or separate representation (i.e. closed relationship), the lawyer should obtain their agreement to such representation in writing.
Chapter 2
[End of insert from "Joint Representation is a
Revolving Door- Avoid the Crush."]
VII. ETHICAL ISSUES WILL ARISE
When dealing with a couple in the context of the estate planning and the definition of descendants as used in the documents, there may be secrets or long-forgotten truths of one spouse that surface because the lawyer asked the hard questions regarding the clients' past. Some attorneys make it a practice to interview the spouses separately, and often refusing to interview the second spouse after hearing the issues/concerns during the first spouse interviewed. If the spouses are open with each other about the descendants of each, the attorney can continue with the traditional representation of the couple after explaining and documenting the conflict of interest and waiver of the conflict between the spouses.
With the internet, information once buried in dark paper archives of hospitals, institutions and county halls can be brought to life with the touch of the search button. Current public records are now easier to access than searching bound volumes of entries at the county clerk's office.
Social media sites provide avenues of contact not otherwise possible with addresses from a phone book. In the last two decades the internet has connected more than just computers - it has permanently connected lives, events and experiences in real and tangible ways. Some of those connections may not be welcomed.
Asking the hard questions regarding potential and known children parented by your client and by the client's descendants (and in some cases, ancestors) is essential to drafting disposition documents to accomplish the group the client wants to benefit and the group the client wants to avoid.
VIII. ARTFUL COMMENTS
In the process of collecting the drafting samples, snippets and quips were offered that don't necessarily fit with a specific section of this paper, but are too good not to pass along. The following quotes offer insight into the practical side of defining "descendants" (and maybe life
-15-

DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT in general). The sources are not identified, but none can be attributed to the authors of this paper. Enjoy!
• "If I move from 'legitimate' I'm thinking about tying the descendant through
DNA, i.e., no common DNA, no money.
And born during normal gestation periods for humans rather than whenever the power fails at the embryo lab."
• "I have no problem with you using the sample as an example, but something tells me we stole it from 's or inappropriate to take credit for it.
Earlier, messier incarnations were our original work. Attached are a few variations on them we discussed, but were never quite happy with. We really spent a whole lot of time staring at the
Family Code to figure out how to get around that issue and I wasn't ever happy with anything we came up with."
• "It was years before I talked the geezers out of the legitimacy requirement. Now we're splitting the baby and specially defining children of men v. children of women."
• "I sincerely don't really know what a voluntary acknowledgment of paternity is. I anticipate reluctant parents who don't really see the point in arguing with a DNA test cooperating with child support obligations and therefore
'voluntarily' acknowledging paternity."
• "Our 'adopted while under 14' approach is a bit different. I once got into a knock down, drag out fight with a Neanderthal old lady client who wanted, and I'm not making this up, 'Pure Bloodlines.' I asked if 'her people' came over on the
Mayflower or something. She asked if I was adopted."
• " ... frankly, the anti-lapse statutes have taken much of the fun out of will construction matters for me."
Chapter 2
• "I have never addressed all of the new
'how to have babies' in my general definitions - I have had two old cases where I had to tailor-draft to include
'children by sperm' but that was before word processing! The biggest single issue is how large is the potential descendant pool? So is it any baby born with any genetic material by anyone for all times sakes or only form a defined group like only my sperm in my wife or only my eggs in a surrogate described by me- within a defined time."
• "[Expert Attorney] says a child is whatever the Family Code says it is. I think she will be changing that definition after gay marriages become routine and the liberal front moves to elevate their pets to human status."
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
Chapter 2
Exhibit A
Re:
ENGAGEMENT/CONSENT LETTER
FIRM LETTERHEAD
1
Engagement/Consent to Joint Representation of Mr. and Mrs. _ _ _ _ _ _ for Estate
Planning
Dear Mr. and Mrs.
- - - - - -
We are pleased that you have engaged our firm to represent the two of you in connection with certain estate planning matters [Describe the estate planning matters the firm is engaged to accomplish] ("Estate Planning" or "Estate Plan"). Our engagement on this Estate Planning project will terminate upon completion of our Estate Planning work and providing you the required Estate Planning documents.
An attorney has the duty to exercise independent professional judgment on behalf of each client.
If an attorney is requested to represent multiple clients in the same matter, the attorney can do so only if the attorney can impartially fulfill this duty for each client and if the attorney obtains the written consent of each client after explaining the possible risks, benefits, and implications involved in the joint representation.
Based upon our initial discussions with the two of you, we have concluded that our firm can impartially represent the two of you in connection with the Estate Planning. However, please be aware that each of you may obtain independent counsel on this matter--now or at any time in the future. In determining whether you should consent to this joint representation, you should carefully consider the following:
1. Role as Joint Legal Counsel
In our joint representation of the two of you on the Estate Planning, we will strive to represent each of you in a professional manner, with our ultimate goal to reach an arrangement regarding the Estate
Planning that is mutually advantageous to each of you and is compatible with the interests of each of you.
Because we will be representing both of you, in carrying-out this representation, we must consider the interests of each of you--not the interests of any one person. As you are probably aware, one advantage to independent representation for each of you is that your respective legal counsel would be acting solely on your behalf--looking out for your best interests exclusively without regard to the interests of the other person. On the other hand, utilizing independent representation for each of you is generally more costly, more contentious, and more time consuming than utilizing joint representation.
2. Disclosure of Information/Open Relationship.
We believe that our firm cannot effectively represent each of you in the Estate Planning if material information disclosed to us by either of you relating to the Estate Planning must be preserved in confidence without disclosure to the other person (i.e. separate representation or closed relationship).
Accordingly, if we are to represent the two of you, it will only be with the express understanding that any material information disclosed to our firm during this engagement, by either of you and which relates to the Estate Planning, shall be disclosed to the other person if knowledge of such information would be
1
Joint Representation is a Revolving Door- Avoid the Crush-- Chapter 6.3; State Bar of Texas, 21st Annual
Entertainment Law Institute
Exhibit A
17

DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
Chapter 2 necessary for him or her to make informed decisions regarding the Estate Planning (i.e. joint representation or open relationship).
3. Attorney-Client Privilege
We believe that any information disclosed to our firm by either of you during this joint representation and relating to the Estate Planning will not be protected by the attorney-client privilege in the event of a subsequent legal dispute between the two of you relating to the Estate Planning.
Additionally, our firm would not be able to represent either of you in connection with any such legal dispute and each of you would be required to obtain independent legal counsel.
4. Existing/Prior Legal Representation of Husband or Wife.
[Consider including the following paragraph if the attorney or the firm has an existing or prior legal representation of Husband or Wife]
Our firm is currently performing (and/or in the past has performed) certain legal services for will adversely affect, materially and directly, our ability to fairly and impartially represent each of you in the
Estate Planning nor will it require use or disclosure of confidential information related to other legal service engagements. However, should we determine, at any time, that a material bias in favor of
- - - - - - - - exists such that our firm cannot fulfill our duties to both of you, then our firm will have to withdraw from this joint representation and will not represent either in this Estate Planning.
5. Future Conflicts.
At this time, there does not appear to be any difference of opinion among you regarding the fundamental terms of the Estate Planning. However, it may turn out that upon further consultation each of you may have differing opinions regarding the terms of the Estate Planning, such as the persons who will be the beneficiaries of your estate or the property such persons will receive. Should we determine that there are material differences (i.e. that are materially and directly adverse to one another) on one or more issues that cannot be resolved amicably or on terms compatible with the mutual best interests of the two of you, then we must at that time withdraw from the joint representation and our firm would not be able to represent either of you in connection with the Estate Planning. If this occurs, we will, if you wish, assist each of you in obtaining new counsel.
6. Legal Fees and Other Charges
Our legal fees and other costs and expenses in connection with the Estate Planning will be billed to you in the following manner. [Describe the legal fee arrangement in reasonable detail (i.e. hourly, fixed fee, etc.) along with other costs and expenses to be charged].
If you are in agreement with the terms and conditions of this engagement, please sign and date this letter where indicated below, and return it to me in the enclosed pre-paid return envelope. Again, we appreciate the opportunity to represent the two of you. If you have any questions about the terms of this engagement, our billing statements or any aspect of our representation, please do not hesitate to call me.
Sincerely,
Attorney
Exhibit A
18

DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
ACKNOWLEDGED AND AGREED:
Date
Mr.
- - - - - - - - - - - - - - - -
Date
Mrs.
- - - - - - - - - - -
Chapter 2
Exhibit A
19

DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT
EXHffiiTB
Example 1
From an article titled "Drafting for Flexibility" by Bruce Stone
Goldman Felcoski & Stone P.A.
Coral Gables, Florida
Rules Governing Family Relationships and Eligibility for Distributions
2.1 A person's descendants who are eligible to receive distributions from a trust created under this trust instrument shall include only persons who are treated as descendants of that person under the rules set forth in clauses 2.2 through 2.6. Someone who is adopted or who is a biological descendant of that person but who does not meet the requirements set forth in clauses 2.2 through 2.6 shall not be a beneficiary of any trust created under this trust instrument.
Adopted Children
2. 2 An adopted child will be regarded as a descendant of the adopting parent if the petition for adoption was filed with the court before the child's thirteenth birthday, and the descendants of that child will be regarded as descendants of the adopting parent. An adopted child will not be regarded as a descendant of the adopting parent if the petition for adoption was filed on or after the child's thirteenth birthday. If a court terminates the legal relationship between a parent and child while the parent is alive, that child and that child's descendants will not be regarded as descendants of that parent. If a parent dies and the legal relationship with the parent's child had not been terminated before the parent's death, the child and the child's descendants will still be regarded as descendants of the deceased parent even if another person later adopts the child.
Biological Children in Gestation During Lifetime
2. 3 The following rules apply for the purpose of determining whether a person who is in gestation during the lifetime of a biological parent (and persons who are treated as the descendants of that person under clauses 2.3 through 2.6) belong to a class of descendants eligible to receive distributions.
Child of Biological Birth Mother
2.3(a) A person whose mother is both the biological and birth mother of that person will be treated as the child of the mother, whether the person was conceived by copulation or by means other than copulation.
Child Conceived By Copulation of Married Parents
2.3(b) If a person was conceived by copulation of the biological parents, the person will be treated as the child of the biological father if the biological parents were married to each other when the person was conceived or at any time after conception.
Conception Other Than By Copulation
2.3(c) If a person was conceived by means other than copulation, the person will be treated as the child of a biological parent only if that parent provided his or her genetic material with the intent to become a parent acknowledged in a written instrument signed by the biological parent that was not revoked by a subsequently dated written instrument signed by that biological parent before that person was in gestation.
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[Optional language: A biological parent's intent to become a parent will be deemed conclusively to have been revoked if that biological parent is legally incapacitated when gestation occurs, unless the acknowledged written instrument signed by that biological parent expressly states that the intent to become a parent will not be revoked by that biological parent's legal incapacity.] The provisions of this clause do not apply to a mother who is both the biological and birth mother of that person.
Spouse of Biological Parent
2.3(d) If a person is treated under clause 2.3(c) as the child of a biological parent who was married when the person was conceived to someone who is not a biological parent of that person, the person will be treated as the child of the biological parent's spouse if the spouse acknowledged intent to become a parent in a written instrument signed by the spouse that was not revoked by a subsequently dated written instrument signed by that spouse before that person was in gestation.
Father Not Married to Biological Mother and
No Prior Written Intent To Become a Parent
2. 3 (e) A person who is not otherwise treated as the child of that person's biological father under the preceding clauses will be treated as the child of the biological father only if:
2.3(e)(l) the biological father acknowledged parentage of the person at any time after conception in a written instrument signed by the biological father;
2.3(e)(2) the biological father openly raised and acknowledged the person as his child; or
2.3(e)(3) parentage was established by adjudication.
Child in Gestation on Parent's Date of Death
2.3(/) A child who is in gestation on the death of a person who is treated as a parent of that child under any of the preceding clauses and who is born alive after the death of that person will be treated as living on that parent's date of death (subject to the general survivorship requirements set forth in clause_).
Children Not in Gestation During Lifetime
2. 4 Whether or not married, the biological parent of a person who was born after that biological parent's death and who was not in gestation on that biological parent's date of death will not be treated as the parent of that person, and that person will not be treated as the child of that biological parent, unless:
2.4(a)(l) that biological parent acknowledged intent in a written instrument signed by that biological parent to become a parent through the use of genetic material that was not revoked by a subsequently dated written instrument signed by that biological parent, and
2.4(a)(2) the person was born within three years after that biological parent's date of death.
2. 5 If a person born within three years after a biological parent's date of death is treated as a child of that biological parent under the provisions of clause 2.4, each person who is a child of that biological parent born within six years after that biological parent's date of death will be treated as a child of that biological parent if all of the other requirements and conditions of clause 2.4 are satisfied.
Three-Year Waiting Period Before Termination of Interests
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2.6 The provisions of this clause will be applicable to a trust held under clause 1on the first date after the death of the child for whom that trust is named when there is no then living descendant of that child, and will operate to extend the time for termination of the beneficial interests of the persons for whom that trust is held, but only if the following conditions are met.
2. 6(a) A person eligible to receive distributions from that trust must give written notice to the
Trustee during that person's lifetime in a written instrument signed by that person that (i) states the person's intent to become a parent through the use of genetic material, and (ii) identifies one or more persons to receive the notice under clause 2.6(b) from the Trustee after that person's death. A person who gives written notice to the Trustee of his or her intent to become a parent can revoke that intent, or can designate other persons to receive the notice under clause 2.6(b ), in a subsequently dated written instrument signed by him or her that is delivered to the Trustee during his or her lifetime.
2.6(b) If a beneficiary of a trust held under clause 1 has given the Trustee written notice that meets the requirements of clause 2.6(a), the Trustee must give written notice within one month after the first date when there are no then living persons who are eligible to receive distributions from the trust under that clause to each person who was designated to receive it that he or she has a period of six months from the date of receipt of the notice to provide the Trustee with the following:
2.6(b)(l) evidence from a medical doctor or other licensed health care provider, clinic, institution, or authority confirming the existence of the genetic material (or one or more embryos produced with that genetic material) provided by the deceased beneficiary; and
2.6(b)(2) a written statement of intention signed by the person to whom the notice was given under penalties of perjury and in the presence of two witnesses that he or she intends to cause a biological child of the deceased beneficiary to be born within the period prescribed in clause 2.4.
2. 6(c) The provisions of clause 2.6 will not be applicable with respect to any child or children conceived with genetic material (or with respect to any descendants of any such child or children) provided by a beneficiary of a trust held under clause 1, and no such child or descendant of any such child conceived with that genetic material shall become a beneficiary of a trust held under clause 1 if:
2.6(c)(l) the beneficiary who provided the genetic material fails to give the Trustee written notice complying with the requirements of clause 2.6(a), or
2. 6(c) (2) the person designated to receive the notice under clause 2.6(b) fails to comply with the requirements under that clause on or before the expiration of six months from the date of receipt of the notice from the Trustee under 2.6(b ).
The provisions of clause 2.6 shall apply separately with respect to each member of a class of descendants for whom a trust is held under clause 1. No child nor any descendant of a child who is conceived as a result of the use of genetic material and who is excluded as a member of the class of descendants eligible to receive distributions from a trust under clause 1 because of the failure to comply with the provisions of clause 2.6 shall ever become eligible to receive distributions even if there are other members of that class of descendants who are eligible to receive distributions because of compliance with the provisions of clause 2.6.
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Example2
Definition of "Issue" to Address In Vitro Fertilization by Jeffrey A. Galant
Meltzer, Lippe, Goldstein & Breitsone, LLP, Mineola, NY
An individual who is born alive and who developed from an embryo that was created by the fertilization of my Spouse's eggs by my semen, irrespective of whether my Spouse is alive at the time of such fertilization, shall be considered to be my child, and the issue of such individual shall be considered to be my issue.
Example 3
Standard Definition from C. Stephen Saunders
Saunders, Norval, Pargaman & Atkins, LLP, Austin, TX
(a) As used in my Will, any reference to my children is to as well as any child or children born to or adopted by me after this Will is executed. Any reference to a child may refer to any of my children. "Descendants" refers to any descendants in any degree of the ancestor designated. Any reference to my descendants includes all of my children and their descendants (including those born or adopted after the date of the execution of this Will). However, except as otherwise provided in my Will, adopted children of any other person (and their descendants, whether or not adopted) shall be treated as descendants only if adopted while age fourteen (14) or under. A child in gestation shall be deemed to be living at the death of his or her parent.
(d) "Per stirpes" shall be construed to mean a strict per stirpital distribution. The closest degree of relation to the ancestor whose descendants take per stirpes shall determine the number of shares into which the property being distributed is to be divided; provided, if all persons receiving property under a per stirpital distribution are in the same degree of kinship they shall take per capita.
Example 4
Client Directed Definition of Children and Descendants drafted by C. Stephen Saunders
Used with permission granted by mutual client reference to a child may refer to either of my children. "Descendants" refers to any descendants in any degree of the ancestor designated. Any reference to my descendants includes both of my children and their descendants (including those born or adopted after the date of the execution of this Will). The term "descendant" shall mean a person who is in a direct line of descent from the person referred to and lawfully related to the person by birth or adoption. A person related by birth must have been (i) born during his or her parents' legal marriage formalized by a religious or civil ceremony or (ii) legitimated in a legal proceeding freely and voluntarily by the person's
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2 parent who is a descendant of the ancestor referred to. However, except as otherwise provided in my Will, adopted children of any other person (and their descendants, whether or not adopted) shall be treated as descendants only if adopted while age five ( 5) or under. A child in gestation shall be deemed to be living at the death of his parent.
(b) "Per stirpes" shall be construed to mean a strict per stirpital distribution. The closest degree of relation to the ancestor whose descendants take per stirpes shall determine the number of shares into which the property being distributed is to be divided; provided, if all persons receiving the property under a per stirpital distribution are in the same degree of kinship they shall take per capita.
(c) Survivorship: Unless specific provisions are contained in a bequest in my Will, if a beneficiary dies within ninety (90) days after me, or under conditions causing doubt as to which of us died first, I direct that for the purpose of distribution of my estate, I shall be deemed to have survived the beneficiary. For all purposes under my Will my wife shall be deemed to have predeceased me if we are not married at the time of my death.
*format was changed from original document for presentation.
Example 5
Descendants by Stanley M. Johanson
Distinguished Teaching Professor and Fannie Coplin Regents Chair in Law
The University of Texas School of Law, Austin, TX
From "Will and Trust Drafting: English as a Second Language for Lawyers"
15th Annual Advanced Drafting: Estate Planning and Probate, League City, TX, October 2004, Chapter 10
F -4. Descendants. My "children" includes any children hereafter born to or adopted by me as well as the children (Andrew, Betty and Carl) that I now have. "Descendants" means the legitimate children of the person designated and the legitimate lineal descendants of such children, and includes any person adopted before attaining age 18 and the adopted person's legitimate lineal descendants. "Descendants" does not include any stepchild of a person if the stepchild was not legally adopted by the person before the stepchild attained age 18. A posthumous child shall be considered as living at the death of his parent, but only if born within 300 days after the death of the parent. Except for discretionary distributions which may be made unequally among a group of beneficiaries and distributions pursuant to the valid exercise of a power of appointment, whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child, if any, shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner.
[Alternate second sentence; client to decide:] "Descendants" means the children of the person designated and the lineal descendants of such children, whether born during or outside of lawful wedlock, and includes any person adopted before attaining age 18 and the adopted person's lineal descendants.
[Alternate final two sentences if instead of "per stirpes," client wants the 1990 UPC approach, under which all grandchildren by two or more deceased are children to share equally:] Except for discretionary distributions which may be made unequally among a group of beneficiaries and distributions pursuant to
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2 the valid exercise of a power of appointment, in making a distribution to the descendants of a person, the property to be distributed shall be divided into as many shares as there are ( i) living descendants in the nearest generation to the person and (ii) deceased descendants in the same degree who left descendants who are then living. Each living descendant in the nearest generation shall take one share. The remaining shares, if any, shall be combined and then divided in the same manner among the living descendants of the deceased descendants referred to in (ii).
F-5. Contingent Beneficiaries. Any distribution to be made to "my contingent beneficiaries" shall be made:
(a) One-half to the persons who would have inherited my personal property if I had died intestate 90 days after the date of my death (if the distribution is from my probate estate), or had died intestate at the time the distribution is to be made (if the distribution is upon termination of a trust), domiciled in Texas and not married, under the laws of Texas in force on the date this will is signed, with the shares of taking determined by those laws.
(b) One-half to the persons who would have inherited my wife's personal property if she had died intestate
90 days after the date of my death (if the distribution is from my probate estate), or had died intestate at the time the distribution is to be made (if the distribution is upon termination of a trust), domiciled in
Texas and not married, under the laws of Texas in force on the date this will is signed, with the shares of taking determined by those laws.
If, at the time the distribution to "my contingent beneficiaries" is to be made, there are no living persons or beneficiaries to take under either of the above subparagraphs, the share described in that subparagraph shall be distributed, in the same proportions, to the persons described in the other subparagraph.
[ANOTHER APPROACH; contingent beneficiaries named] F-5. Contingent Beneficiaries. Any distribution to be made to "my contingent beneficiaries" shall be made:
(a) One-half to the descendants of my brother, Paul Gates, of Berkeley, California; but if none of Paul's descendants is then living, to the descendants of my brother, Edgar Gates, of Spring, Texas.
(b) One-half to my wife's sister, Ditzy Waters, of Quanah, Texas, but if she is not then living, to her descendants.
If, at the time the distribution to "my contingent beneficiaries" is to be made, there are no living persons to take under either of the above subparagraphs, the share described in that subparagraph shall be distributed, in the same proportions, to the person or persons described in the other subparagraph.
Example 6
Definition used in Houston law firm (who requested no attribution)
Children and Descendants. All references in this will to "my children" include not only my children named herein, but any child born to or legally adopted by me after the date this will is signed. Except as otherwise provided herein, a "child" of an individual means a child determined in accordance with the
Texas Family Code, as may be amended from time to time, and includes any child adopted before
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2 attaining age eighteen (18) years, and not adopted thereafter, and the adopted child's lineal descendants.
"Descendants" means the children of the person designated and the lineal descendants of such children, and includes any person adopted before attaining age eighteen ( 18) years and the adopted person's descendants. However, for purposes of the preceding two sentences, a child born out of lawful wedlock is considered to be a descendant of his or her male parent and such parent's ancestors only if such parent has executed a voluntary acknowledgement of paternity or similar written statement expressly authorized under applicable state law. A posthumous child shall be considered as living at the death of his or her parent. Except for discretionary distributions which may be made unequally among a group of beneficiaries and unless otherwise directed pursuant to the valid exercise of a power of appointment, whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child shall take one share and the share of each deceased child shall be divided among his or her then living descendants in the same manner.
Example 7
OPTION for no step-children and no adoption by estoppel from Rhonda Brink
Law Offices of Rhonda Brink, Austin, TX
(c) "Descendants" or "lineal descendants" refers only to any natural born descendant in any degree of the ancestor designated, including my children as defined in my Will and their natural born descendants.
Unless included by definition of my children, none of the following shall be treated as natural born descendants, nor shall they be included in any bequest to a person's "descendants" or "heirs:" (i) adopted children of any person (and their descendants, whether or not adopted), whether formally adopted, deemed to be adopted by estoppel, or informally based on any relationship; and (ii) step-children of any person.
(c) "Descendants" or "lineal descendants" refers only to: (i) any natural born descendant in any degree of the ancestor designated, including my children as defined in my Will and their natural born descendants; and (ii) adopted children of any person (and their descendants, whether or not adopted) if, and only if, formally adopted prior to attaining the age of eighteen (18) years. Unless excluded by definition of my children, children deemed to be adopted by estoppel, or informally based on any relationship shall not be treated as "descendants" or "lineal descendants", and they shall not be included in any bequest to a person's "descendants" or "heirs".
Example 8
Descendants with options for stepchildren from Bill Pargaman
Saunders, N orval, Pargaman & Atkins, LLP, Austin, TX
[Note: At the beginning of the will we list children.]
1.2 Children. My children are . All references in this will to "my children" are to them and to any children born to or adopted by me after the execution of this will.
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[Note: sometimes the entire second sentence is deleted so if the clients have more children, the children are included by default; and the section is modified if stepparent wants to treat stepchildren as actual children.] are
1.2 Children. My children are . My spouse's children by a prior marriage
("my spouse's children"). All references in this will to "my children" are to all of these children and to any children born to or adopted by me after the execution of this will. All references to "my descendants" are to my children (including my spouse's children) and their descendants.
* * *
[Note: We define children, descendants, per stirpes, etc., in the back of the will. Here are the standard provisions. If we've used the second alternative for stepchildren, we'll begin (B) below with "Except as provided in Paragraph 1.2."]
(B) The term "child" or "children" refers only to lawful sons and daughters of the person in question.
The term "descendant" or "descendants" includes lawful, lineal descendants of the first, second or subsequent degree of the person in question, including descendants born subsequent to that person's death. The term "heirs" refers to those persons who would inherit the property in question from the person in question, assuming that the person in question had died intestate owning that property under the
Texas laws of descent and distribution in effect at the time of that person's death. When the term "heirs" is used, the shares and proportions of taking shall be determined by Texas law. The term "then surviving heirs" refers to those persons who would be the heirs of the person in question if that person had died at the time of the event which entitles the heirs to delivery of the property in question.
(C) The following shall apply to Paragraph 8.1(B):
(1) A legally adopted child and the adopted child's descendants and legally adopted children shall be deemed descendants of the adopting parents and of anyone who is by blood or adoption an ancestor of either of the adopting parents. However, a person who is twenty-one years of age or older when legally adopted shall not be deemed a descendant.
(2) In determining the heirs of a descendant of mine, all of my descendants shall be deemed to be heirs of the whole blood.
(3) In the event that (i) the parental rights of a person (the "former parent") with respect to a child have been terminated, and (ii) the child was adopted during the former parent's lifetime, the child shall be treated as born to or adopted by the adoptive parent, and not as hom to or adopted by the former parent.
* * *
(H) The term "per stirpes" means strict per stirpes and not per capita with representation.
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Example 8
Definitions for Wills, Trusts and Partnerships from Marjorie Stephens
Smith & Stephens, Dallas, TX
General (used in Wills and Trusts)
Reference herein to "child," "children," "issue," "heir" and "descendants" include those adopted in a formal legal proceeding.
The terms "issue" and "descendants" are used interchangeably and have the same meaning.
The terms "issue" and "descendants" are used interchangeably and have the same meaning. "Children",
"issue" and "descendant" shall only include my natural and legitimate children, issue and descendants.
A person in gestation who is later born alive shall be regarded in this instrument as a person in being during the period of gestation in determining whether any person has died without leaving descendants surviving him or her, in determining on the termination of the trust hereunder, whether such person is entitled to share in the disposition of the then remaining principal and undistributed income of trust, but for other purposes, such person's right shall accrue from the date of his birth.
"Descendants" means the legitimate children of the person designated and the legitimate lineal descendants of such children, and includes any person adopted before attaining age fifteen ( 15) and the adopted person's legitimate lineal descendants. A posthumous child shall be considered as living at the death of his parent.
Any reference herein to "child," "children," "issue," "heir" and "descendants" shall include those adopted in a formal legal proceeding, but only if at the time of the adoption, ( 1) the adopted person was under the age of eighteen (18) years, and, (2) with respect to any beneficial interest hereunder in any retirement benefits, the adopted person was not older than the oldest living descendant of that Grantor who, with respect to such retirement benefits, is or was the participant, employee, or person for whom such retirement benefits are or were maintained.
Specific (Wills and Trusts)
At the time of the execution of this Trust Agreement, the Grantor is not married and has no children. The
Grantor has two sisters; XX and YY and five nieces and nephews; XX, XX XX, XX and XX. The
Grantor's sister XX is married to XX and the Grantor's sister YY is married to YY. The term husband shall mean only such persons and only if they are married to such sister upon such sister's death.
At the time of the execution of this Trust Agreement, Grantor is married to XX. Grantor and Grantor's spouse have two children: XX and XX. Grantor has two children from a previous marriage: YY and YY.
Grantor's spouse has two children from a previous marriage: ZZ and ZZ. It is Grantor's intention that, for all purposes of this Trust, all six such children shall be considered Grantor's children and that any descendant of any such child shall be considered Grantor's descendant.
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I have two children from a previous marriage: XX and XX. My husband has one child from a previous marriage: YY. I intend to treat my husband's child as my own, so all references to "my children" shall include my two children and my husband's one child.
At the time of the execution of this Trust Agreement, Grantors have one child: XX. The Grantors have two grandchildren YY and YY. The Grantors have one great grandchild: ZZ. Although ZZ was born outside of a marriage, ZZ shall be considered to be a descendant of YY and of Grantors for all purposes under this Trust Agreement (although he/she may be precluded from taking under this trust by exercise of the powers of appointment provided herein.
The trust estate shall be held and administered primarily for the benefit of the Grantors' children, XX, XX and XX. Grantor XX has two children of a previous marriage, YY and YY. The terms "children" and
"descendants" when used herein shall not include YY and YY or any descendant of either of them.
Notwithstanding any other provision of this Trust Agreement, whenever used in this Trust Agreement, reference to "child" or "children", unless otherwise specifically indicated, means legitimate descendants of the first degree of XX and XX together, and reference to lineal descendants means all of the legitimate descendants of whatever degree of the named ancestor, provided, however, that for the purposes of this
Trust Agreement, an adopted child, and such adopted child's legitimate descendants by blood or adoption shall be considered as legitimate descendants of the adopting parent or parents and of anyone who is by blood or adoption an ancestor of the adopting parent or of either of the adopting parents, provided such adoption is by court proceedings, the finality of which is not questioned by the adopting person, and provided further that the adopted child is not over twenty (20) years of age at the time of adoption.
At the time of the execution of this Trust Agreement, Grantor XX has xx children: XX and XX. The
Grantors have intentionally omitted all xx children of XX as beneficiaries under this Trust Agreement
(other than in the Article entitled 'Contingent Distribution'). Grantor YY has yy children: YY and YY, both of whom are named beneficiaries under this Trust Agreement. Grantors have been married for many years and YY considers the children of YY as his family. It is the desire of both Grantors that the children of YY are the beneficiaries of trusts created under this trust agreement and the Grantors have intentionally not included the children of XX. The exclusion of the children of XX is not attributable to a lack of love and affection for the children and descendants of XX, but rather because XX has, during his lifetime, provided for his children, by lifetime gifts and otherwise, and accordingly, Grantors have not made any provisions for the children of YY in this trust (other than in the Article entitled 'Contingent
Distribution'). With the exception of the Article entitled 'Contingent Distribution', any reference to
Grantor's or Grantors' children and descendants shall be only to the children and descendants of YY.
The terms "issue" and "descendants" are used interchangeably and have the same meaning. Such terms shall include XX, the birth son/daughter of the Grantor's child, XX. The terms "issue" and "descendants" shall include adopted children unless such adopted child is the step child of a descendants of the Grantor who is adopted by one of the Grantor's descendants. XX, the adopted child of the Grantor's son/daughter, YY, is specifically included as a descendant hereunder.
Husband's and Wife's children born before the date of this Trust Agreement are XX and XX. Husband's child from a previous marriage is YY. YY shall be treated as if he/she were Wife's child with respect to
Wife's one-half community interest in Husband and Wife's community property, the income therefrom,
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2 and the proceeds of such property and income, but shall not be treated as Wife's child with respect to
Wife's separate property, or the income therefrom, or the proceeds of such property or income. Wife's separate property includes (but is not necessarily limited to) certain stock which is her separate property, and property she acquired by gift, devise, or descent from her parents.
At the time of the execution of this agreement, Grantors have two children: XX and XX. Grantor XX has a son by a prior marriage, YY, but he is not included in the term "child," "children," or "descendant(s)" as used in this trust agreement, except that he shall be considered a "descendant" of the Grantors for purposes of any power of appointment granted under Section V, CIDLDREN'S TRUSTS, hereunder.
Partnership
A Permitted Transferee is defined to include: a Partner; a Family Member; a descendant of a Family member, including descendants by adoption; parents and siblings of Family Members; descendants of
Family Member's siblings, including descendants by adoption; a trust created for the benefit of anyone named above; a charitable organization; and, a charitable trust.
Permitted Transferee. (1) a Partner; (2) a descendant of a Partner, including descendants by adoption if the adoption was a court adoption of a minor under five years of age; (3) any parent or sibling of a
Partner; ( 4) a descendant of a sibling of a Partner including those by adoption as defined in (2) above; (5) a trust created for the benefit of a Partner or anyone in (2) through ( 4) above; (6) a corporation, limited partnership or limited liability company controlled and owned by anyone in (1) through (5) above;(7) any organization described in each of the following sections of the Code: Section 170(b)(l)(A), Section
170(c), Section 2055(a) and Section 2522(a); and (8) a charitable remainder trust created under Section
664 of the Code. A Permitted Transferee, upon receiving a transfer of a Limited Partnership Interest, shall be an Assignee, and upon executing a written agreement agreeing to the terms of this Agreement shall become a Limited Partner.
Example 9
Definitions to be used in Wills, Testamentary Trusts and ILITs from Jeffrey N. Myers
Bourland, Wall & Wenzel, a Professional Corporation, Fort Worth, TX
[Note: the examples are on the next 3 pages.]
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Pourover Will, Married Person:
1.1 Identity ofTestator's Family
I dec.Iare that 1 am married to «SpousesName» and that all •·eJbrences in this Will to "my spouse" are references to <<SpousesName>>. We have «NumberOfChildren», now living, whose
«NamelsOrNamesAre» «ChildOneName»«ChildTwoName»«ChildTbreeName>>. All references in this Will to "children" and "descendants" refer alike to adopted children and descendants and natural-born children and descendants. including children identified above, and also to any later born or adopted child or descendant. All references in this Will to "descendants" shall include children and more remote descendants. A child or descendant in gestation who is born alive shall be considered a child or descendant in being throughout the period of gestation.
6.1 Descendants Per Stity;es
In making any allocation or distribution of property to the descendants of any person "per stirpes,'' the fiduciary shall divide the subject property into as many shares as there are children of such person (i) who are living at the time of distribution, or (ii) who died leaving descendants who are living at the time of distribution. The "fiduciary shall allocate or distribttte the share created for a living child to that child and shall divide the share created for any deceased child among his living children and descendants as described in this paragraph, treating the deceased child as the "person" for the purpose of this further division.
3.1 Revocation ofthe Family Trust
In the event the trust instrument described in paragraph Error! Reference source not found. above has been revoked at the date of my death, then I give, devise and bequeath all of the rest, residue and remainder of my estate, outright and free of trust, to my spouse, in fee simple and Jree of trust if my spouse survives me by one hundred eighty ( 180) days. In the event my spouse does not survive me by one hundred eighty ( 180) days, I give, devise and bequeath the rest, residue and remainder of my estate, to my then living descendants, per stirpes, in fee simple free of trust, or if I have no then living descendants, one-half (112) to my heirs-at-law, then living, determined as if I had died unmarried and domiciled in the
State of Texas and one-half (1/2) to the heirs-at-law, then living, of my spouse, detennined as if my spouse had died unmarried and domiciled in the State ofTexas.
Testamentary Trust Will:
1.1 Identity of Testator's Family
I declare that I am married to <<'TestatorsSpouse» and that all references in this \Viii to ~•my spouse" are references to «TestatorsSpouse>>. We have «NumberOfChildrem>, now living, whose
«NamelsOrN amesAre» «CltildOnesN ame>>«CbildTwosN ame»«ChiJdTh reesN arne». All references in this Will to "children" and "descendants" refer alike to adopted children and descendants and natural-born children and descendants, including children identified above, and also to any later born or adopted child or descendant, All references in this Will to "descendants" shall include children and more remote descendants. A child or descendant in gestation who is born alive shall be considered a child or descendant in being throughout the period of gestation.
IO, 1 Descendants Per ,S'tilpes
In making any allocation or distribution of property to the descendants of any person "per stirpes," the fiduciary shall divide the subject property into as many shares as there are children of such person (i) who are living at the time of distribution, or (ii) who died leaving descendants who are living at the time of distribution. The fiduciary shaJI allocate or distribute the share created for a living child to that child and shall divide the share created for any deceased child among his living children and descendants as
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT described in this paragraph, treating the deceased child as the "person" for the purpose of this further division.
3.1 No Surviving Beneficiaries
If all the beneficiaries of this Residuary T'rust die with assets stiJl held in trust by the Trustee, then, to the extent that the beneficiaries have not exercised their powers of appointment the Trustee shall distribute the then remaining trust assets in fee simple and free of trust to my then living descendants, per stirpes, or if none, one-half ( 1/2) to my heirs-at-law, then living, determined as if I had died unmarried and domiciled in the State of Texas and one-half (1/2) to the heirs-at-law, then living, of my spouse, determined as if my spouse had died unmarried and domiciled in the State of Texas.
AE Fandly Trust:
1.1 .Identification of Settlor's FamiZv
All references to "Settlor" are references to <<Settlot·sName>;. «SettlorsName» is married to
«SettlorsSpouse>> and all references to Settlor's Spouse shall mean «SettlorsSpouse>> if
«SettlorsSpouse» survives the Settlor. «SertlorsName>> has <<NumberOfChildren», now living, whose
«NamelsOrNamesAre>> «ChildOneName>>«ChildTwoName>>«ChildThreeName>>.
1. 3 Children
HChildren" of Settlor as used herein refers to the child or children identified above and to a child later born to or adopted by Settlor. A child in gestation who is born alive shall be considered a child throughout the period of gestation.
1. 4 Descendants
"Descendants" as used herein refers to a person's children and other lineal descendants of any degree, and shall include adopted descendants and natural born descendants whether currently living, later born or adopted. Notwithstanding the foregoing, a descendant who is eighteen (J 8) years of age or older when legally adopted is not the child of his or her adoptive parent fo1· all purposes herein. A child in gestation who is born alive shall be considered a child throughout the period of gestation.
1.5 Per Stirpes
"Per Stirpes" shall mean, in making a distribution to the descendants of a person "per stirpes/' the property to be distributed shall be divided into as many equal shares as there are then living children of such person and then deceased children of such person who left descendants who are then living. Each living child (if any) shall take one equal share and the equal share of each deceased child shall be divided among his then living descendants in the same manner.
6.1 No Surviving Beneficiaries
If all the beneticiaries of this Trust D die with assets still held in trust by the Trustee, then, to the extent that the beneficiaries have not exercised their powers of appointment, the Trustee shall distribute the corpus of this entire trust, together with any accumulated and undistributed income, to the Settlor's heirsat-law, then living, determined as if Settlor had died on such distribution date unmarried and domiciled in the State of Texas.
Chapter 2
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2
ILIT:
1.1 Identification ~fSettlors' Family
<<llusbandSettlor>> and «WifeSettlor>> are married and all references to 1 'Settlors" are references to them.
«H.usbandSettlor>> and «WifeSettlor>> have «NumberOfChildren», now living, whose
«N ameslsOt:NamesAre» «ChildOneN ame>H<Ch ildTwoN ame>)>«CbildThreeN aJne».
1. 5 Children
HChildren" of a Settlor as used herein refers to the child or children identified above and to a child later born to or adopted by a Settlor. A child in gestation who is born alive shall be considered a child throughout the period of gestation.
1. 6 Descendant,.,.
"Descendants" as used herein refers to a person's children and other lineal descendants ofany degree, and shall include adopted descendants and natural born descendants whether currently living, later born or adopted. Notwithstanding the foregoing, a descendant who is eighteen (18) years of age or older when legally adopted is not the child of his or her adoptive parent for all purposes herein. A child in gestation who is bo.rn alive shall be considered a child throughout the period of gestation.
1.5
~'Per
Per Stirpes
Stirpes" shall mean, in making a distribution to the descendants of a person "per stirpes;~ the property to be distributed shall be divided into as many equal shares as there are then living children of such person and then deceased children of such person who left descendants who are then living. Each living child (if any) shall take one equal share and the equal share of each deceased child shall be divided among his then living descendants in the same manner.
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DEFINING DESCENDANTS: BUILDING THE FAMILY YOU WANT Chapter 2
Example 10
Definitions for Will from Fizer, Beck, Webster, Bentley & Scroggins, P.C., Houston, TX
2.2 I have XXX children, XXX. All references in this Will to "my children" (or to other similar phrases) are to them XXX and to any children subsequently born to or adopted by me XXX, and all references in this Will to "my descendants" (or to other similar phrases) are to my children and their respective· descendants.
11.4 References in this Will to "descendant" or "descendants" mean lawful lineal blood descendants of the first, second or any other degree of the ancestor designated; provided, however, that such references shall include, with respect to any provision of this Will, descendants who have been conceived at any specific point in time relevant to such provision and who thereafter survive birth; and provided further that an adopted child and such adopted child's lawful lineal descendants by blood or adoption shall be considered under my Will as lawful lineal blood descendants of the adopting parent or parents and of anyone who is by blood or adoption a lineal ancestor of the adopting parent or of either of the adopting parents.
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