If my father passed away and in his Will left everything to my mom, amI entitled to a child’s portion?

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If my father passed away and in his Will left everything to my mom, amI entitled to a child’s portion?

Asked on December 2, 2011 under Estate Planning, Georgia

Answers:

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

Answered 10 years ago | Contributor

If your father had a Will, and we were not left a bequest (i.e. gift) then I'm afraid that you are probably out of luck. The fact is that a parent may disinherit their child; typically a child has no automatic right to inherit from their parents. That having been said, in such a situation there should be specific disinheritance language in the Will to protect against an accidental disinheritance (some states require this). This is to protect a child in case the parent did not know about a child or if the child was born after the Will was signed. In such a case a child may have a right to “elect against the Will” and receive a share of the assets. 

Even if you were not mentioned in the Will, you should be aware that some assets can be transferred outside of probate. For example, some assets may have been held as "joint tenants with right of survivorship", in which case the other joint tenant would have received your father's share to property operation of law. Also, funds in an IRA, pension, 401(k), or other retirement plan by-pass probate and go directly to the designated beneficiaries. The same holds true for any life insurance proceeds. So you check on these assets as well. perhaps you were named on them.


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