What rights does my 11 year old brother regardingour father’s estate?

My daddy passed away 3 weeks ago and had no Will. There is me 25, my sister 24, and our little brother 11. I am going to probate tomorrow to apply for Persona Represetative which my sister and brother agree too. However, my stepmother who was divorced from our dad, is our little brother’s mom. What rights does she have, if any, and what about our brother? The only thing my daddy had was his house and land. While he and our stepmom were married they got a home equity loan on that still has a $48,000 balance. Who is responsible for that?

Asked on October 17, 2011 under Estate Planning, South Carolina


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss.  If your father died with out a Will he died what is known as "intestate" and each state has what is known as an intestacy statute that will tell you as the Personal Representative how the estate is to be divided.  Your Father's ex wife will not be sharing in the estate proceeds.  You and your siblings - and yes, your little brother too - will each receive a third of the net estate (the total estate minusthe debts owed and estate taxes paid).  You share equally.  When one inherits a house with a mortgage it is generally inherited "subject to" the mortgage, but your state's law may be different.  I am assuming that the divorce between your father and his ex wife covered the issue of the mortgage and that since he kept the house he also kept the debt too, but check on that issue.  You as the personal representative have the right and obligation to enforce all agreements youd dad entered in to in his lifetime.  If you sell the house then you can pay the mortgage off, but that is your decision.  If your brother is only 11 then you may want to speak with some one about setting up a trust for his care if you are worried about his mom squandering the money.  It is a lot to take on.  Good luck to you.

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