Honorable S.IM. Brown

Executive Secretary Teacher Retirement System of Texas Austin, Texas
Dear Sir: Opinion No. Q-2307 Re: Distribution ofbenefits after death ofamember.
Inyour letter of May 20, 1940, you request our opinion in respo,nse tothe following questions: ,

“1. InOpinion No. O-129 dated June 1, 1939, the.following statement is made:

“‘The benefits allocated to amarried member ofthe Teacher Retirement System of Texas are not community property. Such benefits belong to the .2,eparate estate ofthe member.’

“In view ofthis opinion, how would the accumulated coI$$ributions ofa deceased member be divided between the surviv: 1spouse and surviving children of that marriage in case no benefici..srv had been named 7

‘2. Would the children ofa deceased member by previous 6arriage participate tothe same extent as the children ofthe decedent and the spouse towhom the decedent was married at time ofdeath?

‘3. Ifa member ofthe Teacher Retirement System dies without having designated a beneficiary to receivethe return of his contributions 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 tobe appointed for the estate and paid the money tothe administrator? Ifsuch procedure is followed, would it relieve the Teacher Retirement System. **of** any future responsibility in the case, such as having to determine the way inwhich the money should be divided among the heirs 7Honorable S. M. Brown, Page 2, O-2387

“4. Incase it’is the opinion ofyour department that the money could be paid to an administrator and thus relieve the Teacher Retirement System ofany fur,ther responsibility, would itbe advisable and legally permissible for the Teacher Retirement System to attempt tosettle the case without an administrator being appointed if the estate ofthe deceased member does not otherwise require an administrator and ifthe accumulated contributions ofthe deceased member in the Teacher Saving Fund ofthe Teacher Retirement System constitute such a small sum that the cost of court proceedings would cover a substantial portion ofthe accumulated contributions, should an administrator be required ?

‘5. Ifthe Teacher Retirement System finds it necessary to return the accumulated contributions ofa deceased member to several heirs such as a surviving spouse and two or three adult children, would itbe 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 itbe legal and wise for the Teacher Retirement System to issue awarrant payable to all of the heirs for the full sum without attempting tobe responsible for the division ofthe money between the heirs ?* Assumption is that each ofyour questions relates to the case of amember dying without leaving awill. Your statement made inconnection with the first question with reference to one ofthe holdings contained in our Opinion No. O-129 is a correct one. We adhere tothe view therein expressed that the benefits.upder discussion belong to the separate estate ofthe 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. Ifthe deceased have a child or children, or their descendants;‘the surviving husband or wife shall take one-third ofthe personal estate, and the balance of such personal estate shall go to the child or children ofthe deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in onethird ofthe land ofthe intestate, with remainder to the child or children 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 tothe surviving husband or wife. The children of the deceased are entitled tothe other two-thirds, share and share alike. This answers your first question. Your second question is answered inthe affirmative, the statute making no difference between the children ofthe deceased regarding the marriage towhich they were born.

The personal property ofa deceased person ordinarily goes tothe administrator or executor. Our statutes provide a method for the distribution of an estate inthe hands ofan 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 toassume that the estate would be properly distributed by the administrator under supervision **of** the probate court. The last part ofyour third question is therefore given an affirmative answer. Furthermore, since you must deliver the money to the person or persons entitled tothe same, or toatribunal which itmay be assumed will so deliver the same, you would be fully justified in requiring an administration in any instance where you are not entirely satisfied from the proof submitted that the claimants are entitled to receive the benefits left by the deceased member. We believe this will sufficiently answer the first part ofyour third question.
We think your fourth question suggests a very proper procedure. Where affidavits are submitted, which appear reliable and to conclusively show each and all ofthe heirs ofthe deceased, and showing further that there are no debts owing by the deceased or his estate, and there is otherwise noneed for an administration, it is quite proper for distribution tobe made without requiring an administration, particularily where the amount ofthe benefits is small. We would suggest, however, that payment not be hastily made and that you require the presentation of such affidavits 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. Insome cases it may be advisable to issue asingle warrant payable toall heirs. However, it can be seen where this would lead topractical difficulties unless the procedure has been authorized by all parties at interest. In some instances thewarrant might be withheld from presentation for an extended peri.od. Inmany cases itwill appear advantageous to issue awarrant toeach heir for the amount towhich he is entitled. Ordinarily itwould seem tous that this would be the best practice. However, that is a matter which you will have todetermine as the cases arise. Both procedures are legal and proper. You ofcourse realize the necessity of definitely ascertaining the persons entitled to the benefits and in making payment in such away that each person will re-

,ceive his legal share and nomore. Where disputes arise between claimants, they

### Honorable S.M. Brown, Page 4, O-2387

should besettled, **if** 

### possible, before you make payment. Weare eorry’that we 

### cannot advise you more 

### deftnitely onyour 

### fifthquestion. As lndivldual cases present themselves wewtll be glad 

### tobe of

### anslstance whenpossible.
Yours 

### very truly ATTORNEY GENERAL **OF** 

### TEXAS

BY GlennR. Lewis

Aaeirtant 

### APPROVED JUN13, 1940 L?za&g?- ATTORNEY GENERAL OFTEXAS

0RL:RS APPROVED OPINION
e2iz?z Chairman