WHAT IS A CHILD ENTITLED TO WHEN A PARENT DIES WITH A WILL?
Losing a parent at whatever age is undoubtedly traumatic.
There is so much upheaval at the time that most people are unlikely to be thinking about the legal processes that must be addressed sooner or later.
One of these is succession where the parent's estate is meant to be settled. This includes wealth distribution and debt payment. If you just lost a parent, the issue of succession and their will shall definitely come up.
So what should you expect if a parent dies with a will? Learn all about that here.
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Sonoma County Probate & Estate Attorney Andrew Kern
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What is a Will?
A will is a legal document one prepares to stipulate how they wish their property to be distributed after their death. It can also spell out how they want their minor children to be taken care of. This can mean nominating a guardian for your kids and dependents.
A will tells people what the deceased person wished for their estate. This can minimize some of the conflicts and disputes associated with wealth distribution after a loved one passes on. A will also ensures that your property does not end up with people you don’t want benefitting from your assets, like estranged relatives.
For the most part, succession becomes much simpler and takes a shorter period when a will is involved.
What Does A Child Get When A Parent Dies With A Will?
When a parent passes on with a will, the child’s entitlements will usually be limited to the provisions outlined in the document.
As such, the will is expected to have specifics on what the child or children are entitled to, be it in amount, specific assets, or percentage of the estate.
One of the key people in a will is the executor. An executor is a person appointed by the deceased to execute a will as intended. This can be a spouse, trusted relative, friend, or even a probate attorney in Sonoma County. An executor’s job is to distribute assets as intended and guarantee that the children’s inheritance is secured and their rights are respected.
But there is a process known as probate before a will can be executed. Probate is a legal process in which the courts seek to determine the validity of a will before allowing the executor to implement its contents. This process also ensures that the deceased debts are settled before their assets are distributed to their heirs and beneficiaries.
If a parent dies with a will in place, then the process is straightforward, and everyone gets what is bequeathed to them. However, in some instances, siblings can contest a will through a probate lawyer in Sonoma County.
Factors Affecting Entitlement
Here are factors that come into play regarding entitlement.
Provisions of the will
Parents specify what rights their kids inherit. Parents with more than one child can distribute everything equally, give percentages, or leave specific assets to a certain child.
A parent with one child can leave all their assets to the child. Others include other relatives and even charitable organizations besides their sole child.
Age and Maturity
The age and maturity of a child affects their entitlement. For example, a minor is left with a guardian, and their inheritance is held in trust until they come of age.
Similarly, parents can also have set stipulations like limiting access to inheritance until the child attains a certain age, or milestone, like graduation.
Financial Needs
Parents with multiple children can also allocate the inheritance disproportionately to cater to the differing financial needs of their children.
For example, they might leave more to the kids that are not doing great financially. Or to their kids who have given them grandkids. Parents can also leave more to kids with special healthcare needs that strain them financially.
Is A Will Final?
While the outcomes of probate can differ due to the circumstances, there is a typical pattern for probate with a will and probate without a will.
Probate with Will
When there is a will, there is also a named executor. In this case, the executor begins the probate process.
Legally, the executor has the authority to value the assets, settle the deceased's bills and owed taxes, and distribute the deceased’s assets to their heirs and beneficiaries.
In this case, probate freezes the estate in a sense. This is until a will is validated, properties and assets are valued, and taxes and creditors are paid, and all interested parties are notified.
Once these tasks are settled, the court issues an order allowing distribution of the properties, after which the estate is closed down. An estate planning attorney in the Bay area can ensure your interests are protected.
Probate without a Will
Ideally, a will should be final; after all, it represents what the deceased wanted. However, this is not always the case.
One common assumption is that parents are entitled to leave all their kids a share of their wealth in their will. However, most states allow parents to disinherit some or all of their kids if they wish to do so. Unfortunately, a will that leaves out a child or several of the deceased children can be contested in court.
This is because children are considered to be an interested party. As such, they can contest the will during the probate process, and a judge can determine whether they should get a share of their parent’s property.
Siblings included in a will can also contest the will and seek a larger share of the estate. This happens in instances where siblings who were their parents' caretakers or incurred more expenses on their parent’s behalf feel they deserve a larger share of their parent's estate.
What Do Children Get When Parents Die Without A Will?
The other side of the coin is when parents die without a will. In this case, your state’s intestacy laws take over.
What happens is that the surviving family goes through the probate process. Here, assets are valued, heirs and beneficiaries are determined, and debts are settled.
Once this is over, the court then applies the state's intestacy laws to divide up the estate, and this is done following strict regulations.
So first, if the deceased parent had a spouse, the spouse inherits the family home. If there is no living spouse, the home goes to the kids, each getting an equal share. The siblings can decide to sell it and split the proceedings, or one might be open to buying the rest out. If they can’t agree, then they can go back to the courts to force a sale.
If the deceased parent left other assets, and the spouse is alive, the spouse gets all their communal property.
If there is one child, the spouse gets 2/3 of the separate property. If there is more than one child, the spouse gets 1/3 of the separate property. The remainder is then divided equally among the siblings.
When there is no surviving spouse, the court will distribute the assets equally between the living children. If one of the siblings is deceased, then their share goes to their children, that is, the grandchildren of the deceased.
Talk to A Qualified Probate Attorney in Petaluma CA
Whether you are looking to have a parent's will executed as is or wish to challenge one, talking to an attorney is crucial. An estate planning attorney in Sonoma County can discuss entitlement with you and help to ensure that your interests are protected.
The law office of Andrew Kern has a five-star rated attorney at its helm to ensure you make the most of probate, succession, and will execution processes. So don't go it alone. Call us for a free consultation today.