Children's Rights When a Father Dies With No Will

by Maggie Lourdes
Probate judges must follow state intestate succession laws.

Probate judges must follow state intestate succession laws.

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Intestate succession statutes distribute a decedent's property when no will or other estate plan, such as a trust, is made. A child who survives a father or mother holds a high priority in intestate succession. Each state has its own probate code. Therefore, a child's intestate inheritance rights are governed by the laws of the state in which the parent resided.

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Child's Intestate Rights

Generally, if a man dies leaving only surviving children, they share equally in his intestate estate. However, if a spouse also survives the decedent, the children share the intestate estate with her. How estates are divided between spouses and children varies. For example, in California, property divisions are based on whether assets are community property, also known as marital property. In New York, a spouse takes the first $50,000 of the decedent's community property. The spouse then receives half of the remaining balance of community property while the other half is distributed equally among the children.

Right to Notice

A child must be notified when his father's estate is opened and begins the probate process. The party requesting executorship must serve a copy of the petition to open the estate on all of the decedent's children. He must also provide the names and addresses of the children to the court. Children have a right to both an inventory, listing all estate assets, and an accounting, showing the estate's liabilities and expenditures. A decedent's child has the right to petition the court to receive such information about the proceedings if an executor fails to voluntarily provide it.

Right to Petition

A child has a right to petition a probate court for executorship of his father's estate. A probate court generally approves a child's request to serve as executor. However, if other interested parties object, the court can deny the appointment. A child must prove he is the best choice to serve as an executor if objections to his request for appointment are filed.

Right to Distribution

A child has a right to receive his intestate inheritance within a reasonable time. The executor is generally given one year to finalize the estate. The court may allow extensions to complete complicated estates. If an executor fails to timely distribute a decedent's intestate estate, a child may petition the court to force distribution. A request to remove and replace the executor may also be filed.