29 Dec How can we find out if our father left us something in his will?
Q. My and my brothers’ biological father passed away 12 years ago this past July. My father was not married to our mother and had another family with three children, grandchildren and great grandchildren. It was not a publicly acknowledged fact that we were his children. We were told he left something for us in his will, which may or may not exist. His wife has since passed. How can we see if there was a will and if it’s worth pursuing?
A. Yours is an interesting question.
Generally speaking, a parent is not required to leave his or her adult children an inheritance.
If an individual fails to leave a will, the law of the state in which he or she dies will provide how the decedent’s property is divided, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.
“In New Jersey, if the decedent is survived by a spouse and children, including children who are not children of the surviving spouse, then the surviving spouse is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus one-half of the balance of the intestate estate,” she said. “The descendants of the decedent would receive the balance.”
The intestate estate does not include property that is in the joint name of the decedent and another person with rights of survivorship or payable upon death to another beneficiary, she said.
The issue would be whether you would have been entitled to a percentage of the property permitted under the statute, if any, or under the will if you could prove there was a will, she said.
“Unfortunately, the time to make the claim against your father’s estate would have been upon his death,” she said. “The delay of 12 years is problematic and may prevent a recovery as there are time limitations for bringing legal actions.”
But, she said, you may have other claims and there may be reasons you are not too late.
Because litigation is very fact specific, it is best to speak to an estate litigation attorney if you believe there are sufficient assets that it is worth pursuing.
“But litigation is expensive, not only in monetary cost but also in time and emotional expenditure, so consider it carefully,” she said.
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This story was originally published on Dec. 29, 2020.
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