Legal Question in Wills and Trusts in North Carolina

My father died many years ago, should I have received his estate even if he never married my mother? No other children or wife existed then or now to my knowledge.

Asked on 10/06/13, 6:21 am

1 Answer from Attorneys

First, you say that your biological father died many years ago. When? Where did he live at the time of his death? Why did you not do anything about this until now? Was an estate ever probated for your father? Did he have a will? What assets did your father own at the time of his death and how were they titled?

The starting point would be for to go to the probate court in the county/state where your father lived at the time of his death and see if an estate was ever probated for your father. Regardless of whether he had a will, if an estate was probated, it will tell you if there were probate assets and how they were distributed.

The problem is that if these assets were distributed a long time ago, why was no provision made for you since you were a child? Was any trust set up (if there was a will) or was the money paid to the clerk of court?

If no estate was probated, what assets did your father own at the time of his death? If he was not married to your mother, it means that you were born out of wedlock. Was paternity ever established? If not, then you have no automatic right to inherit. There are time limits for establishing paternity. However, the laws will vary depending on the state. Again, the problem here is that a lot of time has passed and it may be too late to try and establish paternity now.

Assuming NC law would apply, if your father had no will and if he was unmarried, your father's assets would pass to you and any children if paternity was established. Your share of the assets, if you were a minor (under 18), would either have been paid to your mother (if she established a guardianship if the assets were over $1500) or directly to your mother (if under $1500) or paid to the clerk of court. If the latter, you can check with the clerk in the county where the estate was pending to see if there is a fund for you.

If paternity was not established, then any assets owned by your father would have passed to his parents if they were alive and survived him. If not, then his siblings. If there was animosity by members of your father's family towards you and your mother or if the father's family was not aware of you, then the assets would have been disbursed and no attempt would have been made to notify you or your mother.

As I said, I would start with the probate court and see what was done if anything. I would check with the clerk of court or entity in the state charged with handling the assets of minors if your share of the estate was paid over. However, if no estate was probated, you might want to talk to your mother or other of your father's family to see what was done and what your father owned at the time of his death and whether there was any kind of effort to establish paternity for you (either through legitimation or some other means). Depending on what you find out, you then might want to talk to a probate attorney who practices in the county/state where your father's estate was probated to find out about the rules in that state.

My guess though is that this is going to be too late and/or your father had little in the way of assets.

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Answered on 10/06/13, 10:50 pm

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