Whether a child inherits her parent’s property depends on several factors including whether the decedent was truly the child’s legal parent and if there is or isn’t a will involved. The laws regarding the distribution of a decedent’s property vary by state. It is always a good idea to consult a local attorney when investigating inheritance rights.
Children Legally Defined
For the purposes of distributing a decedent’s property, the definition of parentage is relatively limited. Generally, a biological child would have a claim to his parent’s assets. A stepchild, foster child, or grandchild is generally not classified as a decedent’s child. An adopted child may have a claim to his birth parent’s estate, but generally the child must prove he had a parent-child relationship with the decedent, or that the decedent wanted the child to inherit some of her property.
When a person passes away without a will, the decedent’s property is considered intestate. This means that the court will divide up the property according to the state laws of intestacy, or intestate succession. While intestate succession varies by state, the 1990 Uniform Probate Code is the basis of the law in many states. Under this code, a child of a decedent does have a right to a portion of his estate. How much the child inherits under this standard depends on whether the decedent’s spouse is still alive, the spouse’s relationship to the living child, and if there are any other living children of the decedent.
Wills and Children
Wills are legal documents, which if properly executed, establish the final wishes of the decedent regarding how he wants his property distributed. For a decedent’s child, a will can have advantages and disadvantages. If the child is not a blood relation, she can inherit property that she would otherwise not be able to inherit under intestacy. Even if the child is a blood relation, a will may be advantageous because the child may inherit more through the will than through intestate. The downside is that a will can also be used to disinherit a child, preventing her from inheriting property she might otherwise have been able to claim if the estate was intestate.
Probate for Children
If a child of the decedent is excluded as a beneficiary in the will, the time to establish his claim to the estate is when it is put into probate. Probate is the legal process of administering an estate and establishing important matters such as the identity of all heirs. During this time, a prospective child can petition the court to be recognized as an heir, or challenge a will that does not include him. Probate law varies by state, so if a child wishes to contest his standing with the estate, he may want to consider hiring an attorney.
- Legal Information Institute: Estates and Trusts: An Overview
- USlegal: Child (Probate) Law & Legal Definition
- USlegal: Intestate; Intestate Estate; Intestate Succession Law & Legal Definition
- FindLaw: Understanding Intestacy: If You Die Without an Estate Plan
- FreeDictionary: Will
- Sandra L. Clapp: The Probate Process Explained
John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.