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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