Senior woman working on computer planning her will for her child.

What is a Child Entitled to When a Parent Dies Without a Will?

Senior woman working on computer planning her will for her child.

This depends on several factors, including whether the parent was married, to whom, and if they have more than one child. Without a will, the parent’s estate will go through the probate process and assets that would have passed through a will are distributed following New Jersey’s probate laws. In this article, we’ll talk more about the probate process and rules for asset division, as well as assets that bypass the probate process.

If you have questions or concerns about your inheritance or are thinking of setting up your own estate plan, speaking with an estate attorney will be very helpful. The Van Dyck Law Group offers assistance with various future planning needs, including making a will, setting up a trust, and arranging for long-term care plans. If you have questions about estate planning, please contact us for a consultation today.

In the meantime, here are some frequently asked questions about inheritance and the probate process in New Jersey:

How Do Children Inherit When a Parent Dies Intestate (Without a Will)?

Often people wonder about this after a parent passes without a will. Under New Jersey law, there is a full list the probate court uses to determine who inherits depending on what other relatives exist. But for now, we’ll focus on the statutes that apply to situations where the deceased had children:

  • If your parents were married to each other and had no other children outside their marriage, and your other parent is still alive, they will inherit. Nothing passes to the children in this situation.
  • If your parents were married when one of them passed, and that parent had children from other relationships, your other parent will get 25 percent of their estate (between $50,000 and $200,000), plus half the remaining balance. The rest of the estate will be divided between you and your siblings. The same applies if your other parent has children from outside the marriage.
  • If your deceased parent was married to someone besides your other parent, the same rule holds. Their spouse will receive 25 percent of their property plus half the balance, and you and your siblings will get the rest.
  • If your deceased parent was not married when they passed, you and your siblings would receive the whole estate.

What if My Stepparent Died Without a Will?

In most cases, you will not automatically inherit from a stepparent’s estate, but there are a few exceptions. If your stepparent died without any other living family members, you may be entitled to an inheritance. Additionally, if you were legally adopted by your stepparent, then you will inherit as one of their descendants, the same as a biological child would.

Similarly, children who were placed for adoption by their biological parents and legally adopted into another family will inherit from their adoptive family. They will not inherit from their biological parents’ estates.

What Happens if Both Parents Die Without a Will?

If your parents were married to each other, whichever parent dies second will inherit all or some of the estate, depending on whether either of them had children outside the marriage. When the second parent dies without a will, you and your siblings will inherit from their estate.

What if both parents pass at the same time, say in a car accident? Under New Jersey law, if an heir doesn’t live more than 120 hours longer than the deceased, they are determined to have pre-deceased the decedent. One will inherit the other’s estate according to succession rules, then their estate will pass to you and your siblings. The end result is that you and your siblings will inherit both estates.

What if Your Grandparent Dies Without a Will?

Grandchildren don’t automatically inherit from a grandparent, unless the grandchild’s parent, who is the grandparent’s child, dies before the grandparent. In this situation, the grandchild will inherit the parent’s share from the grandparent’s estate.

How Long Does the Probate Process Take?

This depends on the size of the estate, how many assets there are to distribute if any complications arise during the process, and how busy the court is. Generally, small estates where the deceased had few assets will settle faster. However, it can still take some time to get a court date and go through the following steps:

  • The court will appoint a personal representative, similar to an executor. This person’s job is to assist the court by administering the estate. Usually, a relative is appointed – you can volunteer to do the job yourself, but remember that there may be a significant amount of work (how much exactly depends on the size of the asset).
  • The personal representative catalogs all the assets in the estate.
  • Once all the assets are known, they pay any outstanding bills of the estate – medical bills, funeral costs, anything that was due when the decedent passed.
  • After the personal representative ensures all creditors have been taken care of, they distribute whatever assets are left over.

The probate process excludes any property that would not have been inherited through a will, such as assets in a trust, life insurance policies, jointly owned property, and “payable on death” funds or accounts. These go straight to the co-owner or a beneficiary named by the decedent, so the process is much faster.

What to Do When a Parent Dies Without a Will?

The first thing you should do is schedule an appointment with a lawyer who can help you understand and prepare for the probate process. Sometimes people assume that they will inherit based on the laws of intestate succession, but for various reasons, they never hear from the probate court. Your lawyer can check on the case for the deceased and ensure the court knows of your existence. Your attorney will also explain the next steps and documents you will need to find and identify any special circumstances that should be addressed. 

If you have questions or concerns about settling a loved one’s estate or creating an estate plan, please contact Van Dyck Law Group for a consultation at 609-580-1044.

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