QUESTION
What rights as children of the deceased have when father had a will, but remarried and didn't revise the will?
Asked on May 28th, 2013 on Estate Planning - California
16 ANSWERS
3 Awards
The may vary. Are the children minors, some or all at the time of his death? Did he possess separate property at the time of death? Did he have a Will at the time of death? What are the value of the probate assets. These issues and others should be addressed with an attorney. There is no simple answer to the question presented.
Answered on Jul 24th, 2013 at 2:51 AM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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The will would govern if not changed.
Answered on Jul 24th, 2013 at 2:50 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The spouse is entitled to an intestate share of the estate, if there is one. If all of the assets were jointly titled between spouses, then there would not be an estate and the children would not be entitled to anything. Everything depends on the facts of the situation, which you may not yet know.
Answered on Jul 24th, 2013 at 2:50 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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The will is presumably still valid. The children have the right to see a copy of the will and to notice in any estate proceedings. However, the widow is entitled to get all the community property and a third of the separate property.
Answered on Jul 24th, 2013 at 2:50 AM
General Practice Attorney serving Coeur d'Alene, ID
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Michael B. McFarland, PA
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You need to talk to an experienced probate attorney. Part of his property may be community with the new wife, especially if he remarried some time ago; but the specific provisions regarding any of his separate property are likely to still apply.
Answered on Jul 24th, 2013 at 2:50 AM
In most states, the terms of the will would determine the distribution of the assets of the estate. If the man remarried but didn't bother to rewrite his will to provide for the second wife, she would not inherit anything. However, many states allow a widow to claim a percentage of her husband's estate. In some cases, the children of the deceased may also have a stutory claim. Check the laws of the state the deceased resided in at the time of his death for specifics.
Answered on Jul 24th, 2013 at 2:50 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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The Will was revoked by the marriage, if your step-mother survived your father, per Oregon statute. It seems likely your father died intestate, and his children will take half his estate, and his wife the other half.
Answered on Jul 24th, 2013 at 2:50 AM
2 Awards
Probably a lot, but you will need to take the will to a probate attorney and have them review it. Any separate property (property acquired before the new marriage) would at least be divided among the new wife and the kids, if not all to the kids. The community property will go 1/2 pursuant to the will and 1/2 to the new wife based on community property laws. You must have help from an attorney to determine how this can best be handled.
Answered on Jul 24th, 2013 at 2:50 AM
Depending on your state, and the provisions of the Will, you may not have any rights. For further and more detailed information, consult with an attorney specializing in estate administration.
Answered on Jul 24th, 2013 at 2:50 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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The children are direct heirs of the father and are entitled to his whole estate.
Answered on Jul 24th, 2013 at 2:50 AM
You may have to share some of the assets he had prior to his marriage with his widow.? You should consult a probate attorney to review all of the facts and documents and advise you.
Answered on Jul 24th, 2013 at 2:50 AM
Personal Injury Attorney serving Midvale, UT
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Arrow Legal Solutions Group, P.C.
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What ever Will was validly executed and in place at death controls. Remarriage does not automatically revise a will. The only thing that marriage does is grant rights to the new spouse.
Answered on Jul 24th, 2013 at 2:50 AM
Business Law Attorney serving Livonia, MI
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Gerald A. Bagazinski
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It depends on the property and how it was titled. If it is in his and his wife's name, she gets it. If it is in his name, she gets her marital share, a spousal allowance, and an exempt property allowance. She may elect her dower rights. You should contact an attorney.
Answered on Jul 24th, 2013 at 2:50 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Whatever the will provides is the rights they have, subject to possibly some claims from the wife as to his sole and separate property. If the old will talks about an old wife, there may be some issues to work out there as well. You need to have an attorney go through the will and the present financial set up to figure things out.
Answered on Jul 24th, 2013 at 2:50 AM
Estate Planning Attorney serving Torrance, CA
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The Law Office of Kelvin Green
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Normally the provisions of the will apply with the spouse exception (omitted spouse rule) where spouse will get a percentage.
Answered on Jul 24th, 2013 at 2:49 AM
But what does the will provide? Any provision in favor of a former wife is revoked, if the will was signed prior to the divorce. If Dad does not provide for 2nd wife, she can renounce the will and claim 1/3rd of the estate. If the will was signed after the divorce, any provision in favor of the ex-wife survives. but the current spouse can renounce.
Answered on Jul 24th, 2013 at 2:49 AM