Children's Rights When a Father Dies With No Will

By River Braun, J.D.

Children's Rights When a Father Dies With No Will

By River Braun, J.D.

A will allows you to choose your heirs and distribute your property to your heirs according to your wishes after your death. What happens when a father dies without a will? Intestate laws in the state the person resided determine who the heirs of the estate are and how property from the estate is divided among them. Children's inheritance rights are determined by state laws when there is no will. Therefore, a child may receive far less or much more than the father intended if the father died without a will.

Young boy with his head on his mother's shoulder

Surviving Spouses and Children

Most states give preference to surviving spouses and children when a father dies without a will. The children's inheritance rights vary according to state law. Some states leave the entire estate to a surviving spouse while other states may leave one-half or one-third of the estate to the spouse and the rest to the children. The children then divide the remaining portion of the estate equally.

It can be difficult when a father dies without a will. Most spouses intend to leave everything to each other (unless of course, they are divorced), and their children inherit any remaining property once both spouses are deceased. However, without a will, that is not often the case.

Some adult children may opt to enforce their intestate inheritance rights by retaining the property awarded to them by the probate court. In the case of real estate, the spouse living in the home may be forced to “buy out" the children's inherited interest in the home or sell the home to divide the equity according to intestate inheritance laws. These situations can be avoided by having a will.

Minor Child's Inheritance When a Father Dies Without a Will

Minors are not permitted to receive their inheritance until they reach a certain age. Most states use 18 as the age at which a child may receive an inheritance from his or her father. Until that time, a court-appointed trustee, guardian, or conservator manages the child's inheritance. This person may or may not be the child's parent.

The person managing the child's inheritance must do so for the benefit of the child. Most courts closely monitor a minor's inheritance by requiring an annual accounting from the conservator and permission before the conservator makes a large purchase or investment using the child's inheritance.

When a minor child inherits property from a father who did not have a will, it can be difficult for the surviving spouse to take necessary actions to provide for the family. For instance, if the surviving spouse needs to sell the marital home to downsize, move closer to other family members, or relocate for a job opportunity, she cannot sell the home without permission of the court.

The court must approve the sale to ensure the sale of the home is in the best interest of the children since the children also own the home through intestate inheritance. A judge could order the children's proceeds of the sale to be deposited into a financial account instead of investing in a new home, leaving the spouse without sufficient funds to purchase a new home. This example is just one issue that often arises when a father dies without a will leaving money and property to minor children.

A father can avoid many of the problems families face because of intestate laws by drafting a will. For fathers who want to leave certain property or assets to a child, they can do this through a will so that they control what happens once deceased instead of allowing the state to make those decisions.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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