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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Illegitimate Children’s Inheritance Rights

10/04/2001
2:48 PM
Merri Rudd

Q: I recently learned that the father I grew up with was not my biological father, who died three years ago, before I was able to meet him. He had a will. How would I find out if he left me anything? Do I have any claims to his estate? A probate was never filed. My non-biological father never adopted me.

This is a potentially sensitive subject, because sometimes the family of the decedent does not know he or she had a child outside of the marriage. Without seeing the will, I can only respond generally.

New Mexico law does not obligate your biological father to leave his assets to his adult children. Since you had no interaction with your biological father, it is possible that he omitted you as a recipient under his will.

If you had been named as a beneficiary in his will, then the personal representative of his estate would have had the duty to distribute to you your portion of the estate, if there were sufficient assets to distribute after paying debts, claims, and taxes.

However, there may have been no probate assets to distribute, either because of the way they were titled or because there were few assets. As discussed in previous columns, not all assets of a deceased person require a court probate. Assets held in joint tenancy, accounts with named beneficiaries, and trust property pass automatically to the surviving joint tenant or surviving beneficiary and do not pass through a probate proceeding. A will does not affect these types of property since they pass "outside" of the will.

If a probate had been filed, the will would have been part of the court file. Anyone could go to the court and look at it. Also, you would have been entitled to notice of any probate and could have asked for a copy of the will. If his family did not know about you, giving you notice would have been difficult.

Since a probate was not filed, perhaps your biological father’s property passed automatically to a surviving joint tenant or beneficiary (or he had little or no property). You could hire a private investigator to track his assets and learn how they were titled.

Had your biological father died without a will, as a blood child you would have been entitled to a share of his estate. But if his will was valid and omitted you, you would not have a claim to his estate.

Now that you know about this other family, perhaps you can establish a relationship with them and learn more. Good luck.


© 2001, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared October 4, 2001 Albuquerque Journal, Business Outlook

Reprinted with permission

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