What are his six children entitled to, when are they entitled to it and what if my mom spends more than her 50% of the estate? 14 Answers as of November 30, 2012

My dad had five children before marrying my mom. My mom had five children before marrying my dad. They married and shared one child. We were told that my dad's six children get 50% and my mom get 50% with 100% use of the estate.

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
James Oberholtzer, Attorney at Law
James Oberholtzer, Attorney at Law | James Oberholtzer
Your Dad's children are entitled to whatever his Will or Trust says. If he had neither, then the state makes a Will for him. It would give 50% to his natural and adopted children as a group and 50% to his surviving spouse. If she is taking more than her 50%, you can hire an attorney and open a probate estate and get it back from her.
Answer Applies to: Oregon
Replied: 11/30/2012
Victor Varga | Victor Varga
First, I need to know which state you/they reside in.
Answer Applies to: Maryland
Replied: 11/29/2012
Law Office of Pamela Braynon | Pamela Y. Braynon
Assuming that no will was left, mom would receive the first $60,000.00 plus 1/2 of the balance. All of his children would share equally the other 1/2 of the balance. If there is real property owned solely by the decedent, wife would receive what is called a life estate (meaning she will have full use of the property during her life time). At her death, the six children would equally own the property (each owning 1/6th). But consult an attorney familiar with estate law on this.
Answer Applies to: Florida
Replied: 11/29/2012
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
The child issued from your father and mother has first claim to the whole estate, and if she is a minor, she will need to have a guardian appointed for her, who can file a petition to administer the probate. That child should immediately get probate litigation counsel to assist her. The remaining children from either side are not entitled to any part of the estate of your father. This assumes your mother died then your father or your mother died then your father, in any event both are deceased.
Answer Applies to: California
Replied: 11/27/2012
The Taylor Law Office L.L.C.
The Taylor Law Office L.L.C. | Ian A. Taylor
These are not easy answers, but a probate attorney offering free consultation can determine whether you need to seek counsel. You were told correctly. The share's are split, "my dad's six children get 50% and my mom get 50% with 100% use of the estate." Probate may take up to a year, but not all estates need to be probated. If your mom spends more than 50% of your father's estate, she would be personally liable to the estate for the excess that can be accounted and attributed to the estate. Beneficiary rights to probate is a difficult area of law, but a probate attorney could help you out.
Answer Applies to: South Carolina
Replied: 11/27/2012
    Hamblin Law Office | Sally Hamblin
    What happens is you go down the heir blood line. If father died first, his wife would have all spousal elections. Depends on the language in the will, too. If no will, then spouse and child or children of that spouse who died are the heirs. Step children do not take any estate assets unless a will states otherwise. Even then depending on the spouse not wanting the will honored could result in legal arguments. What you stated is not true. It is more complex than that.
    Answer Applies to: Michigan
    Replied: 11/27/2012
    John Simmons
    John Simmons | John Simmons
    It depends on whether your father had a last will and testament or not, or his estate was held in a trust. If in a trust, then the terms of that trust would control. It might allow for 2nd wife to have use of all your father's assets, and then on her death there would be the split, perhaps along the lines of what you mention. It would depend on what the trust instruments spell out. If no trust but he had a last will and testament, then the will would govern what happens with his separate property (primarily, what he owned going into the 2nd marriage, what he received by gifts or inheritances just to him not to both of them to the degree these assets have not been commingled signifying a gift to the 2nd wife) and his ? of the community property of this second marriage. If your father died without a last will and testament (that is, he died intestate), then 2nd wife owns (not just has use of) all of the community property. As to any separate property he owned at death, since there are also surviving children (issue, legally speaking), then 2nd wife gets of his separate property (in addition to all of the community property). The other of your father's separate property would be split equally among his children. If he adopted her 5 children, then that of your father's separate property would be split into 11 equal shares. If he did not adopt her 5 children, then that of your father's separate property would be split into 6 equal shares.
    Answer Applies to: Idaho
    Replied: 11/27/2012
    Frederick & Frederick PLC | James P Frederick
    It is difficult to believe that your parents would have set things up in the manner that you describe. I would consider that a very strange estate plan. It *could* be done, but I almost never see something like that. What USUALLY happens is that the surviving spouse either has 100% control over the assets, or the surviving spouse has 100% control over 50% of the assets and almost 100% control over the rest. This changes in situations where the was a pre-nuptial agreement or where the spouses agree to maintain everything as separate property. Without knowing more about what your parents set up, it is impossible to say what your rights are, if any. If both your dad and step-mother are alive, you should try to discuss this with them to see if you can find out what to expect. At the very least, you should know where original documents are kept and who the lawyer is. If your father is deceased, that makes the conversation a bit more awkward, perhaps. You should still try to discuss this, if you can. You will still want to know what to expect and where to find documents, if something happens to your stepmother.
    Answer Applies to: Michigan
    Replied: 11/27/2012
    The Law Offices of Laurie E. Ohall, P.A.
    The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
    If your father died with assets solely in his name, and without a will, then the intestacy statutes in Florida state that your mother receives 50% of those assets, and your father's children share the other 50%. If your father and mother held all the assets jointly, then mom gets everything and there is no estate. Likewise, if your father had a will leaving everything to your mother (and all the children are adults), then your mother gets everything. The homestead is not, technically, considered a probate asset, however, the probate statutes do state how the house is distributed if it was solely in your dad's name when he died. In that case, your mom has 6 months to elect to take a 50% interest in the house (with the other 50% going to the 6 children). If she does not make the election within 6 months of his date of death, she will receive a life estate in the house with the remainder interest to the six children.
    Answer Applies to: Florida
    Replied: 11/27/2012
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    You have not provided sufficient information to give a decent answer. What is certain is, none of you are entitled to anything other than information until after your mother's eventual death. At that time, it is possible that your siblings each get one-twelfth and that you get a 6th, or it may be different, depending on what the relevant documents (trust?will?) say.
    Answer Applies to: California
    Replied: 11/27/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    It depends on the terms of the governing document (the will or trust).
    Answer Applies to: Maryland
    Replied: 11/27/2012
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    It sounds like they may have a trust. Without knowing if they have an estate plan and what the terms are, it is impossible to answer your questions. Your mom should speak with an estate planning attorney to make sure she is taking the proper steps and is not subjecting herself or her heirs to litigation.
    Answer Applies to: Nevada
    Replied: 11/27/2012
    Bullivant Houser Bailey PC
    Bullivant Houser Bailey PC | Darin Christensen
    If he had no will, they are entitled to divide the half at the conclusion of probate. Note: assets with beneficiary designations or joint ownership pass in accordance with the beneficiary designations or form of ownership and are not part of the assets divided 50% to the kids and 50% to the mom.
    Answer Applies to: Oregon
    Replied: 11/27/2012
    Gates' Law, PLLC | Thomas E. Gates
    The wording in the will defines who is to receive any thing from the estate. Distribution to the beneficiaries takes place after all of the known creditors are paid, medical bills, paid and funeral expenses paid. If your mother over spent the 50% estate proceedings, she would need to repay the estate for any money over the 50% mark.
    Answer Applies to: Washington
    Replied: 11/27/2012
Click to View More Answers:
12 3 Free Legal QuestionsConnect with a local attorney