Very Odd Probate Question

What is the name of your state? MO

If a person dies and names his two children as heirs (excecpt for a life estate for widow) and it is determined that even if he named and raised the two children, one of the children was not his biological child. (the child was fathered by the deceased individual's brother).
Two questions: is the child still eligible to be an heir for the non-biological father's estate? she is specifically named

The second question is: if in fact she was her "uncle's" biological daughter, could she re-open the biological father's to claim part of his estate also? Both of the father's are now decease and the person in question had no clue that her biological was not who raised her.
This may seem to bizarre to be true, but, it is a very real case. The widow of the non-biological father has trestified in a deposition, that the first father above knew that the child was not his biological daughter. I cold really use some help here. The daughter will be devastated, but will need to keep her mind in order if this happens.

Thanks in advance.

Who are you in this situation?

This sounds like a homework question to me. I've grown cynical, y'all.

Not a Hypothetical At All

Thanks. I am married to the child whose deceased father was not her biological father although he and his wife raised. This will not be good for my wife and I am very worried about her reaction when she reviews her stepmother's disposition. So, please know this is not a stump the stars or homework assignment. It is a potentially very difficult sitaution and I am not sure how I will be able to help my wife.

Q: Two questions: is the child still eligible to be an heir for the non-biological father's estate?

A: The person writing the will may leave the stuff to whomever he pleases.


Q: The second question is: if in fact she was her "uncle's" biological daughter, could she re-open the biological father's to claim part of his estate also?

A: It would depend on how both wills are written; or, if there was not a will in the bio father's estate, it would depend on if she was named as an heir. But if the estate has already been distributed and closed and a year has passed, then the likelihood of getting anything from the bio father's estate is zero.

[email protected] said:

Thanks. I am married to the child whose deceased father was not her biological father although he and his wife raised. This will not be good for my wife and I am very worried about her reaction when she reviews her stepmother's disposition. So, please know this is not a stump the stars or homework assignment. It is a potentially very difficult sitaution and I am not sure how I will be able to help my wife.

Click to expand...

If the decedent's wife wanted to contest the will, she would get half:


Missouri Intestate Succession Laws

If any part of a Missouri decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

* If there is no surviving issue of the decedent, a surviving spouse is entitled to the entire intestate estate.
* If the decedent is survived by issue, all of whom are also issue of the surviving spouse, the surviving spouse gets the first $20,000, plus one-half of the remaining balance of the intestate estate.
* If the decedent is survived by issue, one or more of whom are not issue of the surviving spouse, the surviving spouse gets one-half of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to decedent's:

1. Children, or their descendants, in equal parts.
2. Father, mother, brother or sister, or their descendants in equal parts.
3. Grandparents, and uncles and aunts, or their descendants in equal parts.
4. Great-grandfathers, great-grandmothers, or their descendants in equal parts.
5. Next of kin related to the decedent up to the ninth degree of kinship.
6. Predeceased spouse who, at the time of the spouse's death, was married to the decedent (i.e., left the decedent a widow/widower). The estate is then distributed according to the rules above, as if the predeceased spouse had died intestate.

3. State of Missouri. If there is no taker under any of the above provisions, the intestate estate passes by default ("escheats") to the state of Missouri.

Missouri Intestate Succession Law Fun Facts

* Decedent's children or descendants conceived before his death, but born thereafter, inherit as if they had been born in the lifetime of the decedent. However, this exception doesn't apply to any of decedent's other relatives.
* When dealing with collateral relatives that are of equal degree of kinship, relatives of the half-blood inherit half as much as relatives of the whole-blood.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of Missouri gets the intestate estate.
* Missouri's intestate succession laws, as well as laws relating to wills, can be found in Title XXXI, Chapter 474, of the Missouri Revised Statutes.

Copyright 2002 - 2007, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

http://www.finance.cch.com/pops/c50s10d190_MO.asp

First: if one is named in a will, one need not be biologically related. At all. One can leave to their cat - and they sure aren't related!

Also, a legally ADOPTED child has the same right of inheritance as a biochild would, so being "biologically related IF there was an adoption is NOT a prerequisite to inheritance rights. I don't know where people get the idea that ONLY the "biological children" have the right to inherit. Both my husband's biokids and his adopted daughter have exactly the same legal inheritance rights as to his estate, but the will controls as well. IT matters not which is biologically related.

Additionally, there are circumstances in which a spouse might NOT be entitled to half the estate. We don't know if any apply here. Example: a prenup establishing that non-comingled PREMARITal ASSETS are seperate and under the control of the owner might allow those assets to be handled seperately.

And, remember as well, that life insurance and jt tenant real estate, etc., pass outside probate so are not part of the estate.

Q: The second question is: if in fact she was her "uncle's" biological daughter, could she re-open the biological father's to claim part of his estate also?

A: It would depend on how both wills are written; or, if there was not a will in the bio father's estate, it would depend on if she was named as an heir. But if the estate has already been distributed and closed and a year has passed, then the likelihood of getting anything from the bio father's estate is zero.

Click to expand...

Given the OP's story, she could be a pretermitted heir, which would make her an heir even without a specifc bequest in the will -- but you are right, once probate is closed, there is likely little chance of getting anything, assuming there was anything to begin with.

Paternity

Yes, the biological father's estate is cloed and yes, there was some value: 1 2 family flat worth about $200K, his home worth about 250K, his 1/2 of a business worth about $500K total, some partnerships in commerical property probably around another $500K. So, yesm there is some value. The paternity issues came up after my FIL's death and his brother (biological father) preceded in death by several years. I belive that the homes were placed in trust, because the Real Estate taxes on the residences are listed as being owned by a trust.

I knwo this sounds like Jerry Springer, but, it is unfortunately true.

Thanks for all of your advice.

Look, at this point, you DON'T actually KNOW that the real estate would have been part of the estate. You won't know that unless you research how it was titled at the time of his death. And the business may have had an agreement that provided a partner buy out or transfer upon death. The estate is closed and you don't even know whether these assets would have been in the estate.