Rights of Adult Children When an Elderly Parent Dies

By Lindsay Kramer - Updated October 16, 2018
Waiting Room

When an adult dies, his loved ones may inherit his assets. These loved ones often include the deceased’s spouse and adult children, but can also include grandchildren, siblings, parents and even other relatives, in some situations.

Figuring out inheritance rights can be confusing, especially when the beneficiary is working through the grief of losing a parent and planning the parent’s funeral while trying to determine her inheritance rights. Learning about inheritance rights before a parent dies is one way to make this process a little bit easier. When an individual does not have this luxury, she can work with an estate planning lawyer to determine her inheritance rights.

What Are My Inheritance Rights?

Your inheritance rights to your deceased parent’s estate depend entirely on a few factors. These factors are:

  • Whether your parent has a surviving spouse
  • Whether your parent had a valid will when he died
  • If a will exists, whether you are included in the will
  • The state where your parent lived before he died

When an individual dies without a will, it is known as dying intestate. Each state has its own intestate succession laws, and all simply outline the hierarchy of beneficiaries in a deceased individual’s life. For example, if the individual dies with a spouse and adult children, state law may grant half of the deceased’s estate to his spouse and half to be divided among his children, but if he dies with neither a spouse nor children, his assets could go to the party that is “next in line,” which might be siblings.

Asserting Your Inheritance Rights

It is not always easy to assert your rights as a beneficiary, especially when you are facing conflict from your siblings or other loved ones. If you feel you cannot assert your rights sufficiently on your own, consider working with an estate planning lawyer to ensure that you receive the assets you are entitled to receive and that you are able to make the choices you are entitled to make. Typically, estate planning lawyers work with individuals planning their own estates, like making wills and setting up trusts, but an estate planning lawyer has the knowledge to effectively advocate for a beneficiary as well in this type of situation.

An estate planning lawyer can also help you understand the applicable inheritance laws in your state. Although survivors’ rights are similar from state to state and the probate process works similarly to achieve the same goals across the United States, there are differences between states’ laws that can impact how these processes are carried out. Understanding your state’s laws from the outset can help you avoid any confusion and misunderstandings in your interactions with your siblings and with the court.

Why Do Siblings Fight When a Parent Dies?

There are many reasons why adult siblings fight after losing a parent. These reasons vary from family to family and are often tied to the circumstances that preceded the parent’s death, such as the type of care she received or the decisions the sibling tasked with power of attorney for the parent made. A few specific reasons why siblings fight include:

  • Disagreements regarding the parent’s funeral and burial
  • Resentment of siblings’ involvement levels with the parent prior to death
  • Jealousy over the parent’s will
  • Disagreements over whether the parent’s will is valid
  • Accusations that the will’s executor is not acting in accordance with the parent’s wishes

When siblings disagree about whether a parent’s will is valid, accusations of coercion and other forms of manipulation can arise. An adult child of the deceased can contest the will, which can potentially lead to its being deemed invalid. When a will is deemed to be invalid, the court will look for a prior will from the deceased and if this prior will is determined to be valid, will distribute the deceased’s assets according to this will.

The Ins and Outs of Wills

An individual’s last will and testament, commonly known as a will, is the document that states her wishes regarding who will inherit her assets after her passing. The following information can be included in a will:

  • A designated guardian for her minor children
  • Specific assets and who will inherit them
  • A designated adult to manage the property her minor children will inherit
  • An executor, the individual tasked with carrying out and enforcing the will’s terms

A will’s author has the right to designate any beneficiaries she wishes. Beyond leaving assets to her immediate family, she might choose to leave assets to close friends, charitable organizations or her alma mater. She cannot leave assets to a pet, but she can designate a beneficiary to take the pet after her passing and leave money to that beneficiary to care for the pet.

Married couples cannot create joint wills. Instead, both individuals must write their own wills. Each individual may designate beneficiaries only for his share of his joint assets in his will.

Along with the information stated above, a will’s author should include alternative parties for certain categories. One important category in which alternatives are necessary is the designated guardian for the author’s minor children. If the initial guardian cannot fulfill this role for any reason, the next prospective guardian listed will likely become the children’s guardian. The court has the discretion to determine who actually becomes the children’s guardian in this scenario, which it determines based on what it deems to be in the children’s best interest. Alternative beneficiaries for the author’s assets can also be listed, granting them the right to inherit the listed assets in the event the author’s first choices do not survive her.

Misconceptions About Wills

What many people do not understand about wills is how to disinherit a child or a spouse. Simply leaving an individual out of a will does not prevent him from claiming a right to inherit a share of the author’s assets. Many states have laws in place to prevent accidental disinheritance, like a parent forgetting to update her will after having or adopting a child. To disinherit a party, the author must explicitly state that the specific party is excluded from the will. Laws on disinheriting children and spouses differ from state to state and in some cases, it is impossible to disinherit a spouse or child. An example of this is Louisiana law, where it is impossible to disinherit a child who is 23 years old or younger or one who has a physical or mental impairment that prevents him from supporting himself.

It is a common misconception that assets included in wills are not subject to probate. Probate is the process through which the court determines whether a will is valid and disburses the deceased’s assets to her beneficiaries. This process happens whether the deceased individual wrote a will or not. Assets held in trusts are not subject to probate and can be transferred to beneficiaries in a more streamlined manner than assets named in a will can be. Having a will can make the probate process faster and more straightforward because it provides the court with a set of instructions to follow, rather than the court having to determine the deceased’s rightful heirs, track them down and facilitate the process of distributing the deceased’s assets.

Another misconception about wills is that they can be used to avoid paying estate taxes. This simply is not true. The truth is that trusts are not subject to certain taxes and can be used to reduce an estate’s tax bill.

What Constitutes a Valid Will?

State laws vary on what constitutes a valid will. Not all states require wills to be notarized and in some states, oral wills are valid under certain circumstances. Usually, a will needs to be signed by two witnesses to be valid. However, there are circumstances where a self-proving will can be deemed valid.

A will created when the grantor was incapacitated in some way is not a valid will. Similarly, wills created with undue influence from a caregiver or a beneficiary can be deemed invalid because these wills do not accurately reflect the grantor’s wishes for her assets.

Which Assets Can Be Included in a Will?

Certain assets can be included in wills. Others cannot. Assets that cannot be included in a will are:

  • Assets held in joint tenancy because when one joint owner dies, his share is transferred to the other owner
  • Retirement plans, as these typically include their own beneficiary designations
  • Investments held in beneficiary because these too go to their named beneficiaries
  • Property held in living trusts
  • Payable-on-death bank account funds
  • Proceeds from life insurance policies that have named beneficiaries

Assets that can be included in a will are:

  • Cash
  • Property like real estate and undeveloped land
  • Items like vehicles, artwork, furniture and personal items like computers and collections
  • Intellectual property like artwork and patents
  • Investments like stocks and business interests

Can a Child Collect a Deceased Parent’s Social Security?

Yes. A minor or a full-time student age 19 or younger can receive 75 percent of a deceased parent’s Social Security benefits. An adult child who was disabled before age 22 can also receive these benefits.

If the child has another living parent, she can receive half of the deceased parent’s Social Security benefits.

What Do You Call a Child Whose Parents are Dead?

A child whose parents are both dead is known as an orphan. Although the term is often used to describe minor children whose parents are deceased, an adult can technically be an orphan regardless of how old he was when his parents died.

How to Go on Living When Someone You Love Dies

It is not easy to get back to your normal routine after losing a loved one. In fact, it might not be possible to get back to your old “normal;” you might instead have to adapt to a new normal, a new reality for yourself and your family.

It is impossible to recover from grief by ignoring it. One popular way for people to work through their grief after losing loved ones is to seek counseling. There are many counselors who specialize in helping adults cope with losing their parents, an experience that many people face at some point in their lives. For some people, cleaning out the deceased parent’s home is therapeutic. For others, becoming more involved in a social or religious community is a way to heal from loss. These communities often offer support groups for grieving loved ones, as do many hospitals, hospice care providers and nursing facilities. Many of these facilities offer specialized grief support groups, like groups for adult children of cancer victims. An adult struggling with the loss of his parent can turn to his late parent’s caregivers for help in connecting with an emotional support group.

About the Author

Lindsay Kramer is a freelance writer and editor who has been working in the legal niche since 2012. Her primary focus areas within this niche are family law and personal injury law. Lindsay works closely with a few legal marketing agencies, providing blog posts, website content and marketing materials to law firms across the United States.

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