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What happens to an estate if father died in 10/08 and stepmother died 4/11, father had will what are the rights to all children?

Raleigh, NC |

My father passed away 10/08 and had a will which stated that his 4 adult children would recieve his estated if his wife (our stepmother) pasted away within 30 days of his death, else she will recieve his estate. She just passed away this month 4/11, and has 4 adult children from a previous marriage, We only want personal possessions that belonged to our father which were given to him by our grandparents and greatgrandparents, ie, grandfathers ring, grandfathers gold bar, pistol/rifels and the mineral rights to homestead in Texas that belonged to our grandparents, and our family photos given to my father from his 4 adult children. We dont want anything that belonged to her. I dont know if she left a will or not, does her 4 adult children get everything?

Attorney Answers 4


  1. Sadly, this is probably an issue that would have best been addressed with your stepmother sometime in the last 3 years after your father's death. Consider visiting with an attorney in the state of your father's and stepmother's residence at their death, but I feel as though you'll find the response fairly the same. On the facts that you've laid out, your stepmother "survived" your father and became entitled to all of his estate pursuant to the Will. At that point, the property is hers to dispose of as she chooses. If she left no Will, her estate passes to her heirs, and unless she adopted you, you aren't an heir. My advice is to try to find some communication with her children to discuss the possibility of receiving the items that you've mentioned.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.


  2. First of all, the 30-day provision is irrelevant, given that your father predeceased his wife by two and a half years. Your father's estate should pass in accordance with his will, with one possible exception -- if his wife did not receive anything under your father's will, she may be entitled to a surviving spouse's right of election, which in most states allows the surviving spouse to receive a third of the estate. Whatever was in your stepmother's estate will pass to her children or in accordance with any will that she may have executed.

    The simple answer is that you and your siblings should be entitled to most of your father's estate.

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.


  3. I'm afraid that my response, posted here but a moment ago, was incorrect in that I did not see the part that said "else she will receive his estate." Thus, his wife receives the entire estate.

    If there are items that you want, you might simply ask your stepmother for those items, particularly those that are not of any significant extrinsice value. Of course, the nature of your relationship with her will probably dictate how this plays out.

    At any rate, I apologize for misreading the question and for providing an initial response that was incorrect.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.


  4. This is a sad situation. Since your father left everything to his wife her will prevails now that she has passed. If she doesn't have a will NC law will prevail and everything will go to her family. Try communicating with your step mother's executor and see if he/she will allow you to receive or purchase some of your father's personal items.
    Different language in your father's will or a trust could have prevented this result. I hope someone reads this and keeps this from happening to their family.

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