If someone dies without a Will, are their children entitled to share in the estate?

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If someone dies without a Will, are their children entitled to share in the estate?

A married couple owns a commercial property. They divorce and everything is split 50/50. The man remarries and the ex-wife signs a quitclaim deed and transfers her portion of the commercial property to the man and his new wife. If the man dies, are the man’s children entitled to any portion of the commercial property? There is no Will and the new wife holds a power of attorney.

Asked on October 28, 2015 under Estate Planning, Arkansas

Answers:

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

Answered 5 years ago | Contributor

When somone dies without a Will they are said to have have died "intestate". Therfore the laws of the state in which the deceased was domiciled as of the date of their death will control. Typically, in such cases, the estate is divided 1/2-1/3 to the surving spouse, if any and the remainder to be evenly distributed to the children of the deceased. Again, specific state law will control the distribution.
The foregong applies to any property that the deceased owned solely. To the extent that property was owned jointly, then in the case of a husband and wife, it is typically owned as "joint tenants with rights of survivorship". This means that upon the death of 1 of the co-owners the surving co-owner becomes vested with 100% ownership of the property. Consequently, the property that was quitclaimed to your father and stepmother is most likley owned outright by her.
Note: If the property that was quitclaimed was held by your father and his wife as "tenants in common', then you may also be entitled to a portion of the property that was owned by your father.


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