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Do the children of the non custodial parent have rights to his assets upon his death

Little Falls, NY |

My ex husband, who lived in New York State, recently died. We had 4 children ages 17, 22, 24, & 26. He owned everything he had jointly with the second wife (no children from second marriage) and left no will. Do the children have any rights to the assets owned by him and the second wife?

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Attorney answers 1


There are many levels to this question. With the exception of Louisiana children do not have a right to inherit from parents. However your Property Settlement Agreement may have called for the children's father to carry life insurance for their benefit. Children under the age of 18 or still in school may have different rights from their emancipated brothers and sisters. The first step is to determine if he had a Will, or died without a Will (intestate) ). In either event anyone seeking to probate the Will or file for Administration ( no Will ) must notify the children. If he had a Will, he did not have to provide for the children, unless there was some agreement to do so in the Divorce Decree. Also, if there is no Will a portion of the Probate Estate would pass to the children by law. Probate assets pass according to the Will or by Intestacy. non-probate assets, such as IRA's, life insurance go to a a named beneficiary, or in the case of joint assets to the co-owner. At some point in time the children will have to determine the assets of the estate, and if they are probate or non-probate. The first step would be to contact the Office of the Surrogate in the county where your ex resided, and ask if anyone has submitted a Will for Probate or applied for Administration. I suggest that you have a consultation with an attorney who handles probate matters, and that you bring a copy of your Property Settlement Agreement to the meeting.

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