It’s a common question, and the answer is: It depends.
In general, even biological children have no legal right to inherit a deceased parent’s property. This is why it’s so important for parents to list their children as beneficiaries on accounts and create a will and trust through a reputable estate planning attorney.
If your parent died, and you’re confused about your inheritance rights, consult with a New York probate attorney. Read on to learn more.
Parent Died with a Valid Will
In general, a will is valid if it has been written by someone of legal age (usually age 18) and of sound mind (this is called “testamentary capacity”).
The will must be signed, dated, and witnessed by two “disinterested” witnesses, meaning they will not personally benefit from the will; these are just a few of the conditions that make a will valid.
A valid will should mention all children and clearly indicate what each child is entitled to. If the will is clear and all children are accounted for, each child’s share of the property will be distributed.
It’s not always so clear cut, though. Sometimes a will might be outdated—if a parent created a will before their last child was born and never updated it to include the new child, for example. In this case, many states will still recognize the new child’s rights to some of the assets. The state may assume that the parent accidentally, not intentionally, disinherited the child.
Another common situation is when a parent remarried before they died and left their entire estate to the new spouse. In this case, the stepparent may be able to completely disinherit the child or children of the deceased parent unless the will states otherwise.
Even if a child is not named in the will, it’s still possible to pass on certain assets through the designation of a beneficiary. For example, a parent can make what’s called a beneficiary deed to leave real property (real estate) to a child. A parent can also designate beneficiaries on other types of accounts, including bank accounts, certificates of deposit (CDs), retirement accounts like IRAs and 401Ks, and insurance policies and annuities.
So, if you were not named in the will but you’re the listed beneficiary on financial or insurance accounts, these assets can be transferred to you without reference to the will.
Parent Died Without a Will
If your parent died without a will, it’s called “intestacy.” According to the New York Estates, Powers and Trusts Law (EPTL):
- If there is a spouse and there are no children, the spouse receives 100 percent of the estate.
- If there is a spouse and there are children (biological or adopted), the spouse receives $50,000 plus half (50 percent) of the estate balance; the children inherit everything else (if there are two children, each would receive 25 percent of the remaining balance, for example).
- If there is no spouse but there is a child or children, they will receive an equal distribution of the estate; if there are two children, for example, each will receive 50 percent.
- Adoptive children have the same inheritance rights as biological children.
- Stepchildren are not entitled to receive anything from the non-biological parent’s estate (but they will inherit from their biological parents).
Again, if you’re designated as a beneficiary on accounts like IRAs and 401Ks, these assets can be transferred to you without reference to a will if one exists.
Get Expert Help with Estate Planning and Probate Administration
Navigating trusts and estates law and understanding your inheritance rights is complicated. We can help.
Joseph A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries, heirs, beneficiaries, and other interested parties. He and his associate counsel have 32 years of combined experience and can help you avoid probate through the skilled use of trusts and other means.
Call us for a no-obligation consultation today at (718) 276-6656. We serve clients throughout the state, including Jamaica, NY; Queens, NY; and Brooklyn, NY.
Ledwidge & Associates
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