When to Probate?

If a biological parent passed away, but re-married, can the biological children
probate? or entitled to an inheritance if no will was done? And is there a limit
of time?

Asked on March 3, 2019 under Estate Planning, Minnesota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

When there is no will, the biological children inhert as per the rules for "intestate succession" (who gets what when there is no will). Every state has its own rules. To use the state you mention (MN) as an example: if the biological parent was married to someone else when he/she dies, the spouse inherits the first $225,000 of value in the estate and 1/2 of everything in excess of $225,000; the biological (or adopted, if any, since adopted--but not step--children are treated as biological children) share the other 1/2 of assets in excess of $225,000.
Any one who may inherit can ask to be appointed the personal representive to probate the estate. Whomever is apppointed must probate in accordance with intestate succession law.

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