What are my rights if my parents died without a will?

Recently on our legal forum a user asked, “What happens if my parents died without a will. What happens to their property and can my step brothers take away the property? Can the courts intervene?”

Unfortunately, not everyone who owns property and assets is fully prepared for death. Millions of Americans have not talked with an estate lawyer and prepared a valid will. While there are state laws and protections which will determine who inherits property when someone dies, it can be expensive and time-consuming for those left behind.

Let’s take a closer look at what you will need to do following your parent’s death.

What do I do if my parents did not have a will?

You mentioned your parents have died without a will. Although many types of assets and property may be transferred through a will, there are certain types of assets which can be transferred through other means.

For example, real estate is generally transferred through a will, but it could also be transferred without a will through joint tenancy, tenancy by the entirety, or community property with right of survivorship. It also can be transferred without a will if it was held in a living trust or if there was a transfer-on-death (TOD) deed.

So the first step is to make sure that none of these vehicles existed to automatically transfer the property to your step brothers.

Getting an executor appointed

Assuming there was no will and the property did not automatically transfer to your step brothers through one of the processes mentioned above, the court will need to name an executor. As an adult child you could be named as the executor for your parent’s estate. If the court decides to name you as executor you may be charged with gathering the property and ensuring it is transferred to the proper heirs.

Laws which determine how property is inherited without a will are called intestate succession laws. These laws vary by state. Most states allow that the surviving spouses, registered domestic partners, and blood relatives inherit property, with the surviving spouse generally getting most of the property.

If there is no surviving spouse then the courts will determine if the couple had children. The term “children” can vary by state. You mentioned that the remaining children include you and your step brothers. If you were the biological child of one parent and they were the biological children of the other and the property was owned jointly by both parents, it’s likely the state would split the property equally between all of you.

Obviously, this is very complicated, and the situation could vary based on whether all of you were legally adopted by both parents, your state’s intestate laws, or whether one of the parents owned the property separately from their spouse.

To reiterate, you will need to talk to an estate lawyer who is familiar with your state’s intestate laws and how they apply to your specific situation.

What should you not do after your parent's death?

From the tone of your question it sounds as if you feel like you have been bullied by your step brothers. The most important thing to take away from this information is that you-as the biological daughter of one of the deceased parents- have rights.

Assuming your parents did not have a will and they did not have a living trust or some other way to specifically deed the property to your step brothers, you most likely have a claim to a share of their property, regardless of whether or not your step brothers try to strong arm you and take possession of it.

Bottom Line:

It’s time to talk to an estate lawyer, contact the courts, get an executor appointed, and make sure you get what you deserve.