What Is a Child Entitled to When a Parent Dies With a Will

Executive summary 

• A child has priority in inheritance rights when their parent dies, often automatically entitled to a considerable portion of their deceased parent’s assets by state law. 
• A child’s entitlements will often depend on whether they are a biological, adopted, or stepchild. 
• A child’s entitlement may be limited by an estate plan.
• Proactive estate planning is a crucial process for minimizing the risk of potential disputes and ensuring the estate administration goes smoothly while securing the rightful inheritance for beneficiaries.
• Children should seek the support of a probate litigation attorney to help navigate the probate process, resolve any disputes, and secure access to their rightful inheritance.

Introduction

Upon the death of a parent, children face an extremely difficult time having to grieve the loss of a parent but also navigate the legal complexities involved with transferring their parent’s estate. Biological children and legally adopted are entitled to a designated share of an inheritance when a parent dies. 

However, these entitlements and the specific amounts can change depending on the terms outlined in the will. Leaving behind a will and crafting a clear estate plan is crucial for guiding the estate planning process and ensuring that an individual’s wishes for which beneficiaries and heirs should receive assets are understood. 

Even with a clear will, probate and the administration of a will can be a long, complex, and potentially confusing process. It’s important that children of deceased individuals understand their rights during the probate process so that they can access their rightful inheritance. 

What Happens When a Parent Dies With a Will?

A will is an important part of the estate administration and distribution process—when a parent dies, the will is essential for dictating the allocation of assets, outlining who will be identified as a beneficiary, and what portion of the inheritance they will be entitled to. The most common beneficiaries are spouses and children.

Before a will can be followed, it must be admitted to probate and verified as valid, and then will be used to determine how to distribute assets to the relevant beneficiaries. These steps are important for ensuring that the probate process aligns with the true intentions of the decedent.

The probate administration process will involve the following steps: 

• Finding a will
• Turning the will over to the lawyer
• Submitting the will to be validated by the court within 60 days of the individual’s death
• Petitioning the court to initiate probate
• Administering the estate and distributing assets according to the terms laid out in the will

At the end of this process, children will be able to receive the inheritance they are entitled to. However, the will is generally the key guiding force for directing the distribution of assets.

What Is a Child Entitled to When a Parent Dies With a Will?

As the direct heirs and successors of their parent, a child has priority inheritance rights entitling them to a certain share of their parents’ assets, absent a contradictory estate plan.. Generally, children have automatic rights to an inheritance—however, the amount of that inheritance will vary depending on the unique circumstances, like how many children

By intestate succession (without a will or trust), a child is entitled to inherit the following:

• If there is only one child, they will receive the full inheritance
• If there are multiple children, each will receive an equal share of the full inheritance split between them
• If there is one child and a surviving spouse, the child will receive 50% of all separate property and the surviving spouse will receive the other 50% of separate property and all community property.
• If there are multiple children and a surviving spouse, then the surviving spouse will receive all community property and all separate property will be split equally among the spouse and all children.

These entitlements can change depending on the terms outlined in a parent’s will.  However, in some instances, a will may be challenged. For example, in the case of a pretermitted heir who is born after the creation of a will, and the will is silent as to the afterborn heirs.

A child may be disinherited through the terms of a will by a specific disinheritance clause of that child or by a general disinheritance clause disinheriting children not mentioned.

Stepchildren are typically not entitled to an inheritance unless they are specifically named in a will. Otherwise, any biological or legally recognized child is entitled to an inheritance with or without a valid will. 

The Role of the Surviving Parent or Spouse

Whether a deceased parent had a surviving spouse is a key influence in how much a child inherits from that parent. A surviving spouse often has the greatest priority to an inheritance from their deceased spouse and generally receives larger share in asset distribution, especially in states with community property laws. However, they do not automatically inherit everything.

Community property is any property that was acquired by either spouse during the course of a marriage or separate property that was transmuted into community property. Meanwhile, separate property is any property that a spouse acquired prior to the marriage, acquired by inheritance, was purchased using separate property assets, or assets that were properly transmuted into separate property from community assets. Community property laws in states like California and Texas state that a spouse generally owns 50% of any assets that their spouse acquired during the course of their marriage. 

Generally, in a community property state, after a loved one’s death, the surviving spouse has full claim to any community property as well as a share of the separate property. Then, the children often have a claim to the other equal shares of the separate property.

In some cases, this can lead to contention, if a child or surviving spouse believes they should be entitled to more. In many cases, though, the surviving spouse can serve as a support system to the personal representative of the estate to help facilitate the transfer of assets. For example, if children are minors, the surviving parent can be a valuable resource for creating an account to hold a child’s assets and facilitate the transfer of those assets once they reach the age of adulthood. 

How the Court Handles Inheritance for Minor Children

Minor children have the same entitlements to an inheritance as adult children, even if they have less capacity to manage them. In these cases, the court handles inheritances for minor children with care and precaution to ensure that their rights are protected. Of course, minor children will be unable to raise their own inheritance disputes—the court, executor, and attorney all have a duty to act in the best interests of the estate and, therefore, any children to prevent them from being taken advantage of.

There are many safeguards the court may put in place to ensure that the inheritance of a minor child is protected—oftentimes, this means appointing a trusted individual to manage the inheritance, like a trustee, guardian, or estate executor, until the child reaches adulthood and they are capable of responsibly managing the inheritance. 

When an individual leaves a will, an executor is also appointed to an estate in order to manage the estate and administer its assets. Depending on the terms outlined in the will, the executor may have the authority to manage the inheritance of the children. 

Differences in Inheritance for Adopted and Biological Children

Common questions when it comes to inheriting from parents revolve around the rights of biological children, stepchildren, and adopted children and how they compare with respect to their inheritance rights. Generally, state intestacy laws provide guaranteed access to an inheritance for children, depending on the circumstances. 

The differences in inheritance rights will matter for the following: 

• Biological children – Biological children have a guaranteed right to an inheritance from a deceased parent unless they are intentionally excluded from the will.
• Adopted children – Legally adopted children have the same inheritance rights as biological children.
• Stepchildren – Stepchildren have no guaranteed inheritance rights unless they were formally and legally adopted by the deceased individual. They may be able to argue that they were ‘equitably adopted’ if the conditions of their childhood and relationship with the deceased parent meet the statute. 

Challenges That May Arise During the Probate Process

Children looking to inherit from their parents must be aware of a few potential challenges. The most common challenges that may arise are centered around disputes over the will, the administration of an estate, and the distributions that each child is entitled to. 

The most common inheritance disputes that arise are between a surviving spouse and the children or between siblings. Examples of potential disputes that may arise include: 

• Disagreements on how to divide inherited property between siblings, such as one child believing they deserve a greater share of the inheritance than another.
• A child may feel that they have a right to a share of the decedent’s property, whereas the surviving spouse claims they should receive the full property. 
• One sibling believes that another sibling has stolen assets from the estate for their own interests. 

These disputes are often avoided by clear estate planning documents—if a settlor clearly outlines who has rights to each of their assets, then the executor and the court will yield to these wishes. If disputes do arise during the estate administration process, then you should consult a probate litigation attorney who can help you navigate them. 

Why Estate Planning Is Essential for Parents

Estate planning is a crucial step for anyone looking to leave assets to their children and heirs. A well-crafted and clear will is the best strategy for preventing disputes and ensuring heirs receive assets in line with the decedent’s true intentions. A clear estate plan that outlines one’s assets and identifies beneficiaries to receive them will clarify the decedent’s wishes and likely answer any questions about how to distribute an estate’s assets.

It’s also essential that individuals update a will regularly to ensure that it aligns with their interests and wishes. For example, if a person has a child, goes through a divorce, or experiences another family change, their interests will likely change and they are likely to want to change the beneficiaries they identified in their will. 

To move through the estate planning process, the head of an estate should consult professionals like financial advisors, tax experts, and an estate planning attorney. Crafting an estate plan with close support from experts will maximize benefits for their heirs and avoid holes being left in the estate plan. 

Case study: How a will defines a child’s entitlement to an inheritance 

The following hypothetical case scenario demonstrates what inheritance rights children are entitled to and how an inheritance distribution may play out in a real-world scenario.

Margaret was a high-net-worth business owner who unexpectedly passed away at the age of 52, leaving behind her high-value estate to her children and her surviving spouse. She was survived by her spouse, Richard, and her three children: 19-year-old Anne, 16-year-old Daniel, and 12-year-old recently adopted stepson, Blake.

Margaret’s estate included the family home, a shared bank account with Richard, and an investment account that she had for years. Fortunately, Margaret was proactive and had created a will a year ago to guide estate administration. However, because her son Blake was recently adopted, he was not included in the will, slightly complicating the process. 

Fortunately, because Blake was legally adopted, the probate court ruled that Blake was entitled to the same share of inheritance as the other two children. The court found that Blake was not intentionally excluded from the will and disinherited but, in fact, was omitted, making him a pretermitted child because Margaret’s most recent estate plan predated Blake’s adoption. 

During asset distribution, because the shared bank account and home were community property acquired during marriage with her husband Richard, he maintained full control of both assets. However, she had an investment account that she had opened prior to marriage, with $240,000 in the account, which was separate property.

Typically, according to California intestacy laws, each family member would receive one-fourth of the assets in the investment account. However, Margaret specified in her will that she wanted the investment account to be distributed favoring her children. She specified that she wanted her two children to split 80% of the account and Richard to receive 20%. 

Considering Blake’s omission, the court ruled each child would receive about 27% and Richard receive 20% of the account. As a result, each child received $64,000 and Richard received $48,000

Margaret’s case highlighted the power of a will in guiding asset distribution and entitlements, as well as the importance of crafting a clear will that specifies how property should be handled and updating it regularly. 

Remember that every case is unique, so if you have any questions, you should consult a probate litigation attorney as soon as possible to discuss the facts of your case and the options available to you.

How to Get Help After the Death of a Parent

If your parent has passed and left behind valuable assets to be distributed to you and other heirs, it’s important to leverage as many resources as possible. You should seek legal guidance and other support systems to navigate the difficulty of the process. 

Your first step after the death of a family member should be to consult an estate administration attorney. An attorney will provide multi-layered support—they can help you compile the will and other necessary documents, determine the necessary next steps for managing the estate, understand your rights and begin navigating the probate process.

Meanwhile, the emotional difficulty of the estate administration process after the death of a family member should not be overlooked. Families should also consider seeking additional resources that are available for grieving individuals. 

Some helpful resources include: 

• Mental health and family counseling 
• Grief support groups 
• Financial advisors and planners
• Other close family members and friends of the decedent

Partner With an RMO Attorney to Protect Your Rights

If a parent dies with a will, children are entitled to an equal distribution of an inheritance unless they were clearly and intentionally excluded for the sake of being disinherited. The best way to avoid disputes about a will is to consult with estate planning professionals to create an airtight, clear, and updated will so that it can guide the distribution of assets without ambiguity around which beneficiaries receive which assets. 

Beyond the estate planning process and into probate, our probate and estate administration attorneys at RMO will work to protect your rights. If you are the child of a deceased individual or another interested individual navigating probate, we’ll help you build a winning strategy to secure access to your rightful inheritance. 

With decades of experience in probate litigation, our attorneys advocate for many different clients in pursuing the inheritance they are entitled to. We take a compassionate, empathetic approach to every case, working to understand the unique nuances of your situation so we can pursue the best possible outcome.

Schedule a consultation with our attorneys to discuss your case and the options available to you.