Texas Estates Code Sec. 201.101: Per Capita with Representation

This section governs how shares are divided among descendants when multiple generations are involved in intestate succession.

The Statutory Rule

Sec. 201.101. DETERMINATION OF PER CAPITA WITH REPRESENTATION DISTRIBUTION.

(a) The children, descendants, brothers, sisters, uncles, aunts, or other relatives of an intestate who stand in the first or same degree of relationship alone and come into the distribution of the intestate's estate take per capita, which means by persons.

(b) If some of the persons described by Subsection (a) are dead and some are living, each descendant of those persons who have died is entitled to a distribution of the intestate's estate. Each descendant inherits only that portion of the property to which the parent through whom the descendant inherits would be entitled if that parent were alive.

Explanation

What it does: Section 201.101 supplies the default division method (“per capita with representation”) for splitting an intestate share among a class of relatives (including descendants).

Key rule (use this sentence in answers): Identify the closest generation that actually has at least one living taker ("the first or same degree ... alone and come into the distribution"). Divide equally by head at that level; use representation only if that same level includes both living and deceased people.

How it works

• Step 1: Find the first degree that takes “alone.” Start with the closest degree. If no one in that degree is living, that degree does not take “alone,” so you move down to the next degree.
• Step 2: Divide per capita at that level. Everyone in that degree who takes in their own right takes equally by persons (per capita).
• Step 3: Add representation only when there is a mix at that level. If some are living and some are dead in that same degree, then each deceased person’s descendants take only the share that person would have taken if alive.

Anti-pattern (common mistake)

Do not start by creating "child shares" if no child survives. If all children predeceased, the children do not define the division. The grandchildren are the first degree who “come into the distribution ... alone,” so the estate is divided equally per grandchild.

Quick example (all children predeceased)

• A, B, and C (all children) predeceased the intestate.
• There are six living grandchildren.
• Result under 201.101(a): divide 1/6 to each grandchild, not “1/3 per child’s line.”

Key concept: This rule governs division mechanics, not entitlement. Other sections of Chapter 201 determine who inherits; Section 201.101 tells you how to split once that class is identified.