Honorable S. IM. Brown
Executive Secretary
Teacher Retirement System of Texas
Austin, Texas
Dear Sir: Opinion No. Q-2307
Re: Distribution of benefits
after death of a member.
In your letter of May 20, 1940, you request our opinion in respo,nse
to the following questions: ,
“1. In Opinion No. O-129 dated June 1, 1939, the. following
statement is made:
“‘The benefits allocated to a married member of the Teacher
Retirement System of Texas are not community property. Such
benefits belong to the .2,eparate estate of the member.’
“In view of this opinion, how would the accumulated coI$$ribu-
tions of a deceased member be divided between the surviv: 1 spouse
and surviving children of that marriage in case no benefici..srv had
been named 7
‘2. Would the children of a deceased member by previous 6ar-
riage participate to the same extent as the children of the decedent
and the spouse to whom the decedent was married at time of death?
‘3. If a member of the Teacher Retirement System dies with-
out having designated a beneficiary to receivethe return of his con-
tributions in case of his death before retirement, would the Teacher
Retirement System be acting within the law and with discretion if it
required an administrator to be appointed for the estate and paid the
money to the administrator? If such procedure is followed, would
it relieve the Teacher Retirement System. of any future responsibil-
ity in the case, such as having to determine the way in which the
money should be divided among the heirs 7
Honorable S. M. Brown, Page 2, O-2387
“4. In case it’is the opinion of your department that the money
could be paid to an administrator and thus relieve the Teacher Re-
tirement System of any fur,ther responsibility, would it be advisable
and legally permissible for the Teacher Retirement System to at-
tempt to settle the case without an administrator being appointed if
the estate of the deceased member does not otherwise require an ad-
ministrator and if the accumulated contributions of the deceased mem-
ber in the Teacher Saving Fund of the Teacher Retirement System
constitute such a small sum that the cost of court proceedings would
cover a substantial portion of the accumulated contributions, should
an administrator be required ?
‘5. If the Teacher Retirement System finds it necessary to re-
turn the accumulated contributions of a deceased member to several
heirs such as a surviving spouse and two or three adult children,
would it be legal and wise for the System to attempt to determine the
exact way the sum should be divided and issue a separate warrant to
each heir, or would it be legal and wise for the Teacher Retirement
System to issue a warrant payable to all of the heirs for the full sum
without attempting to be responsible for the division of the money be-
tween the heirs ? *
Assumption is that each of your questions relates to the case of a mem-
ber dying without leaving a will. Your statement made in connection with the first
question with reference to one of the holdings contained in our Opinion No. O-129
is a correct one. We adhere to the view therein expressed that the benefits.upder .
discussion belong to the separate estate of the member.
Article 2571. Revised Civil Statutes, is applicable. It reads in part:
“Where any person having title to any estate of inheritance. real,
personal or mixed, shall die intestate as to such estate, and shall
leave a surviving husband or wife, the estate of such intestate shall
descend and pass as follows:
“1. If the deceased have a child or children, or their descend-
ants;‘the surviving husband or wife shall take one-third of the per-
sonal estate, and the balance of such personal estate shall go to the
child or children of the deceased and their descendants. The surviv-
ing husband or wife shall also be entitled to an estate for life, in one-
third of the land of the intestate, with remainder to the child or child-
ren of the intestate and their descendants. * * *”
Honorable S. M. Brown, Page 3, O-2387
Where the deceased member is survived by spouse and children, and
no beneficiary has been named as provided in the Act, therefore one-third of the
.benefits goes to the surviving husband or wife. The children of the deceased are
entitled to the other two-thirds, share and share alike. This answers your first
question. Your second question is answered in the affirmative, the statute making
no difference between the children of the deceased regarding the marriage to which
they were born.
The personal property of a deceased person ordinarily goes to the admin-
istrator or executor. Our statutes provide a method for the distribution of an es-
tate in the hands of an administrator after the debts have been paid and the estate
is ready to be wound up. You would be entitled to rely upon compliance with such
statutes and to assume that the estate would be properly distributed by the admin-
istrator under supervision of the probate court. The last part of your third question
is therefore given an affirmative answer. Furthermore, since you must deliver the
money to the person or persons entitled to the same, or to a tribunal which it may
be assumed will so deliver the same, you would be fully justified in requiring an ad-
ministration in any instance where you are not entirely satisfied from the proof sub-
mitted that the claimants are entitled to receive the benefits left by the deceased
member. We believe this will sufficiently answer the first part of your third ques-
tion.
We think your fourth question suggests a very proper procedure. Where
affidavits are submitted, which appear reliable and to conclusively show each and
all of the heirs of the deceased, and showing further that there are no debts owing
by the deceased or his estate, and there is otherwise no need for an administration,
it is quite proper for distribution to be made without requiring an administration,
particularily where the amount of the benefits is small. We would suggest, however,
that payment not be hastily made and that you require the presentation of such affi-
davits as you may deem necessary to amply establish heirship and the fact that there
is no pending administration nor any need for the same.
Your fifth question can hardly be answered categorically. In some cases
it may be advisable to issue a single warrant payable to all heirs. However, it can
be seen where this would lead to practical difficulties unless the procedure has been
authorized by all parties at interest. In some instances the warrant might be with-
held from presentation for an extended peri.od. In many cases it will appear advan-
tageous to issue a warrant to each heir for the amount to which he is entitled. Ordin-
arily it would seem to us that this would be the best practice. However, that is a mat-
ter which you will have to determine as the cases arise. Both procedures are legal
and proper. You of course realize the necessity of definitely ascertaining the persons
entitled to the benefits and in making payment in such a way that each person will re-
, ceive his legal share and no more. Where disputes arise between claimants, they
Honorable S. M. Brown, Page 4, O-2387
should be settled, if possible, before you make payment. We are eorry’that we
cannot advise you more deftnitely on your fifth question. As lndivldual cases
present themselves we wtll be glad to be of anslstance when possible.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
Glenn R. Lewis
Aaeirtant
APPROVED JUN 13, 1940
L?za&g?-
ATTORNEY GENERAL OF TEXAS
0RL:RS
APPROVED
OPINION
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Chairman