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My Biological Parent Died. Am I Entitled to Any of My Biological Parent’s Estate?

trust attorney

We often receive calls from persons who have been informed of the death of a parent, and as is natural, the child of the deceased parent wonders if he or she has a right to any portion of his deceased parent’s estate.

Our usual response is, “That depends.”

Parent died with a valid will

If the parent died with a valid will, and if the drafter of the will was doing their job correctly, all the children should be mentioned in the will and the will should be clear as to what each child is entitled to.

If the will is clear, and if all the children are properly referenced, then the child’s share of the estate will be governed by the will.

Pretermitted Heirs

Many  states have laws to protect “pretermitted heirs.” The purpose of the pretermitted heir statutes is to ensure that if a child is not named, that child will be entitled to a full child’s share of the estate.

Nevada has revised its pretermitted heir statute to provide that if a child is not named in the will, it is presumed the parent’s intention was to not name the child, and it will be up to the “forgotten child” to prove that he or she was inadvertently left out.

Other states give the presumption to the forgotten child, that unless it can be shown the forgotten child was intentionally left out, the child will get a child’s share of the estate.

One way that children get left out is where the deceased parent was remarried and left all of the estate to the new spouse, with nothing going to the children of the deceased parent. Sometimes the will is arranged to provide for the child after the death of the step-parent, but in many cases, the surviving step-parent has control over the estate and may entirely disinherit the child or children of the deceased parent.

Assets passing without regard to the will

Even though the child may not be named in the will, there may be other assets passing without regard to the will which the child might inherit.

For example, the parent may have made a beneficiary deed to leave real property to a child. The beneficiary deed acts without reference to the will. So the child may go onto the county website to get a copy of the deed and see if the deed on the deceased parent’s property names the child as a beneficiary.

In addition, most retirement accounts, such as IRA’s and 401k’s, as well as insurance policies and annuities designate beneficiaries of these accounts, which also transfer in many cases without reference to the will.

So the child of the deceased parent may make inquiries concerning these types of accounts to determine if the child might be a beneficiary.

Usually an attorney can help in determining whether there may be assets of this nature which may benefit the child.

Parent died without a will

What if the parent died intestate, i.e. the parent died without a will? A child has a right to inquire concerning the estate and even petition the probate court to be appointed as the personal representative of the deceased parent’s estate.

Even if not appointed as personal representative in an intestacy matter, the child is entitled to all notice concerning the estate and must be notified of all proceedings in administering the estate.

Nevada is a “community property” state, which means that there is a presumption that property owned jointly by husband and wife belongs to them equally, and upon the death of one of the spouses, in the absence of a will or trust, the community property all passes to the surviving spouse.

If property is not community property, then it is “separate property.”

The law of Nevada provides that if there is no will and if the property is separate property and not community (and often an estate has both types) the separate property goes one-half to the surviving spouse and one-half to the decedent’s child, or if there is more than one child of the decedent, then 1/3 goes to the surviving spouse and 2/3 is divided among the children, as many as there may be.

But again, in cases of intestacy, there may still be assets for which a beneficiary is named, and if so, the asset will normally pass to that beneficiary as set forth in the appropriate documents designed to named beneficiaries, such as retirement accounts and insurance policies.

Were you adopted?

If you are the biological child, but you were adopted away from your biological parent, you have no claim on your biological parent’s estate unless you are specifically provided for.

The intestacy laws do not apply to biological children who were adopted away.

Similarly, if you were adopted, you have a claim on your adoptive parent’s estate just as though you were the natural born child of the adoptive parent; there is no distinction between natural born and adopted children for purposes of inheritance in Nevada.

But you cannot have it both ways: you cannot claim from the biological parent if you can claim from an adoptive parent.

It is clear that there are many issues that impact a child’s inheritance from a parent, so some assistance may be helpful in determining if there is something there in your biological parent’s estate waiting for you.

Request a free consultation today with our experienced probate attorneys in Las Vegas, Nevada.