Children's Rights When a Father Dies With No Will

By Maggie Lourdes

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.

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.

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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.

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Tennessee Estate Laws on Intestacy

References

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Who Can Probate a Will in the State of Alabama?

In Alabama, if the deceased named someone in his will to oversee probate, he is referred to as the executor or personal representative; if no one is named in the will and the court must appoint someone, he is called the administrator. Probate is the process of disposing of the testator's property according to the will’s terms. The executor or administrator must also ensure that all of the deceased’s debts and any estate taxes are paid. Anyone in possession of the will can present it for probate after the testator’s death. This person does not necessarily have to be the executor.

What Happens if an Executor Refuses to Probate?

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

North Carolina's Inheritance Law

When a person dies with a valid will in North Carolina, his property will pass to the beneficiaries he named in his will. A valid will is one in which the maker is at least 18 years old and mentally competent, and the will was properly signed in the presence of witnesses. Without a valid will, a person's estate passes to his surviving relatives in accordance with North Carolina's intestate succession laws.

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