My father who used to be a resident of Boston, Massachusetts, passed away on September 20, 2013. My stepmother who is 92 years and still living and she has an administrator appointed by the Probate court. There might be a will written by my father.
As surviving children are we eligible for a share of my father's estate?
Probate court records are public. I would check with the probate court to see if there was a will admitted. If there is a will, whatever your father said in the will is what goes. So, if he left a share of his estate to you, then you would be entitled. In general, a decedent's estate passes to their surviving spouse, but for a will or trust stating otherwise. You may also try to determine whether your stepmother has a will which would leave a share to you as her step-children upon her death.
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The only thing that I would add to the advice given by the other counsel here, is that if your father did not have a will, then his estate will be divided up according to the laws of intestacy. Not everything becomes part of the estate, for instance any property held jointly with your step-mother, such as bank accounts, is not, neither would insurance proceeds or things where she is the designated beneficiary, and depending on how any property is held, she may automatically take ownership of that as well, as most property held by married couples is held in a way that prevents the need to pass through probate. If there is no will, the estate will be divided as follows (according to this law: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleII/Section2-102): the first $100,000 in assets plus 1/2 of the remainder would go to your step-mother (your father's spouse) with the remainder divided between any children of your father.
I am a Massachusetts attorney and answer questions based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice.
I agree with what has been said so far, but would add that after almost five years, it may be hard to reconstruct what was owned by whom at the time your father died.
If he had a will, it should have been filed with the Probate Court in the county where he lived at the time of his death. If that was Boston, it would be the Suffolk Probate Court. You can do an online search to see if an estate administration was opened for your father, and whether a will was allowed. If so, you can get a copy of the will.
The other document you want to get is the inventory, which is a list of all the assets of the probate estate. Finally, if there was an account filed you want a copy of that. My guess is that none of that was done, including the administration, because you should have been given notice of all of those Probate Court filings.
If your father left a will, it should have been filed with the court within 30 days after his death. I know from experience that sometimes that does not happen. If you have some evidence that a will exists, you might want to pull that information together and see a lawyer about what can be done at this late date.
Depending on your relationship with your stepmother, and whether she had her own children, you may be a beneficiary of her will. One risk is that if she still has the capacity to write a will and you anger her, she might write you out of that will. So I would proceed cautiously.
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You really should meet with a Probate attorney especially if there was an estate beyond $100,000 if your father and step mother were not separated and there was no prenuptial agreement nor Will. There is a limitation period on filing for a regular Formal Probate of estate of 3 years from the date of death and if that has been exceeded ( which is apparent from the facts you presented ), there is a Late Petition which you would likely need legal advice to complete. Do you have a copy of father's Will?
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