If my father passed away, as an only child doI inherit anything?

They had no children; my stepmother kept everything.

Asked on September 28, 2010 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Did your father have a Will? If so, its terms will control. The fact is that a parent may disinherit a child. However, in CA, a child of a deceased parent is entitled to a share of the estate if the child can prove that the failure of the dead parent to name the child as a beneficiary in the Will was due to the parent's mistaken belief that the child was dead when the Will was signed. In addition, children who came into the deceased person's family after the execution of a Will are also entitled to receive shares of the estate. The exception to all of this would if the terms of a Will state the intent of the deceased that the child not take anything from the estate. This applies to trusts as well. If you don’t know if there was a Will, check with the probate court in the county in which your father was domiciled as of the state of his death, it would have been recorded there is would now be a matter of public record.

However, if your father died "intestate: (ie without a Will), then things are different. CA intestacy law will control. Accordingly, if the decedent was married, the first question is whether the decedent owned community property, separate property, or a combination of the two. Community property is generally defined as the assets acquired during marriage from earnings or salary. Separate property is generally defined as assets brought into the marriage when the decedent got married, inheritances to the decedent, or gifts to the decedent. In a case such as yours, the decedent's community property goes to the surviving spouse and the decedent's separate property is distributed: ½ to the surviving spouse; ½ to the decedent’s child.

Bottom line, if your father had a Will its terms will generally control, if not, under CA’s intestacy law you are entitled to ½ of your father’s separate property. Since this is a highly complex area of the law, you should consult more fully with a probate attorney as to your rights/options.


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