Rights of Adult Children When an Elderly Parent Dies

By Teo Spengler
If an elderly parent leaves a surviving spouse, he also has rights.

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Adult children are often an elderly parent's closest living family members. However, this relationship does not necessarily mean that they will inherit when she dies. Their rights depend on whether the parent left a will, who the will named as beneficiaries and whether the will was valid.

Dying Without a Will

If your elderly parent dies without a will, you and other siblings may inherit the estate. When a person dies without a will, the laws of the state, rather than her own preferences, dictate who inherits her property. These statutes, called intestate laws, list different levels of inheritance, with the surviving spouse and the children at the top of the list. For example, If there are no children, the surviving spouse takes all. But if there is no surviving spouse but there are children, the children generally receive everything. If the deceased left both a surviving spouse and children, most states provide a formula for dividing the property among them. Some states leave everything to a surviving spouse in certain circumstances.

Dying With a Valid Will

Even if your elderly parent was incapacitated when she died, her will is valid if it was made when she was competent. A parent is not under any obligation to leave property to her children. If you and your siblings are named as beneficiaries in her valid will, you inherit. If not, you do not. The same is true of assets passed by means other than a will. For example, if you are the named beneficiary on her life insurance policy or stock account, ownership passes to you automatically at her death.

Dying With an Invalid Will

A will is a legal document that must be drawn up according to state rules. If it was not drawn up properly -- for example, if the will had only one witness but two were required by law -- the court will rule it invalid and can look for an earlier valid will. In the absence of any valid will, the estate passes under the intestacy laws. If you think that the will is improperly prepared, you can raise this issue with the probate court.

Challenging a Will

If the will appears to be valid but you suspect that circumstances existed that made it invalid, you will probably need to bring in an attorney to challenge the will. The circumstances might be that your parent was incompetent when she made the will, that a caregiver unduly influenced her in his favor, or that someone told her untrue stories to defraud her family members. This procedure is termed a will contest, and often involves high emotions and attorney fees. Your rights as an adult child depend on the terms of the will, whether it is thrown out by the court and whether an earlier, valid will is located.

About the Author

From Alaska to California, from France's Basque Country to Mexico's Pacific Coast, Teo Spengler has dug the soil, planted seeds and helped trees, flowers and veggies thrive. World traveler, professional writer and consummate gardener, Spengler earned a BA from U.C. Santa Cruz, a law degree from Berkeley's Boalt Hall, and an MA and MFA from San Francisco State. She currently divides her life between San Francisco and southwestern France.

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