The death of a parent is always a difficult time for a family. When the parent passes away without leaving a will — known legally as dying intestate — the situation can become more complicated. One of the most common questions children ask is: What am I entitled to when my parent dies without a will?

This article will explain the basics of inheritance laws for children when a parent dies intestate, what the typical entitlements are, how property is divided, and some important considerations to keep in mind.

What Does It Mean When a Parent Dies Without a Will?

When a person dies without a will, the legal term is “intestate.” A will is a legal document where the deceased person, called the testator, states how they want their assets distributed. Without a will, the distribution of assets follows the state or country’s intestacy laws.

The transfer of property after death without will follows these intestacy rules, meaning the estate is distributed according to a predetermined legal formula rather than the deceased’s personal wishes. In such cases, the court appoints an administrator to oversee the estate and ensure the assets are properly divided among eligible heirs.

How Does Intestate Succession Affect Children?

yellow miniature house held in the palm of a man's hand

Children are generally the closest legal heirs to a deceased parent and usually have priority in inheritance. However, what a child is entitled to can depend on various factors such as:

  • Whether the child is biological, adopted, or stepchild 
  • Whether there is a surviving spouse 
  • The number of children and other surviving relatives 
  • The jurisdiction’s intestate laws (these vary by state or country) 

Despite these variables, children usually receive a significant portion, if not all, of the estate when a parent dies intestate.

What Assets Are Included in the Estate?

Before understanding what a child is entitled to, it’s important to know what assets are part of the estate:

  • Real estate: Homes, land, and properties owned solely by the deceased 
  • Personal property: Cars, jewelry, art, and household items 
  • Financial assets: Bank accounts, stocks, bonds, retirement accounts (some may pass outside the will) 
  • Debts and liabilities: Outstanding loans, mortgages, and credit card debts will be settled before distribution 

Assets owned jointly or with designated beneficiaries may pass outside intestate succession.

What Is a Child Entitled To When a Parent Dies Without a Will?

1. If There Is No Surviving Spouse

If the parent died without a spouse and left children, the estate is generally divided equally among all children. This is called per capita distribution.

  • Each child gets an equal share of the estate 
  • If a child has already passed away, their share usually goes to their own children (the grandchildren of the deceased) 

2. If There Is a Surviving Spouse

If the parent is survived by a spouse and children, the estate is typically split between the spouse and children, but the exact division depends on the law of the state or country.

  • The surviving spouse may get a fixed portion or life estate in the property 
  • The children share the remaining portion equally 
  • In some places, the spouse inherits everything if there is only one child 

3. If There Are Stepchildren or Adopted Children

  • Adopted children are usually treated the same as biological children and have full inheritance rights. 
  • Stepchildren generally do not inherit unless legally adopted or named as heirs through a will. 

What Happens to the Child’s Share If a Child Dies Before the Parent?

If a child dies before the parent but has children of their own, those grandchildren often inherit their deceased parent’s share by a principle called per stirpes.

  • For example, if a parent has three children but one child predeceases the parent, that child’s share will pass to their children (the grandchildren). 
  • If the deceased child has no descendants, their share is redistributed among the surviving siblings.

Can a Child Claim Anything If They Are Not Mentioned in the Will?

This question is more relevant when a parent dies with a will but excludes a child. In intestate cases, since no will exists, all eligible children have a right to inherit according to the law.

If a child is omitted from a will, they may have legal options to claim a portion of the estate, but that does not apply in intestate succession.

How Does Guardianship and Custody Affect Children When a Parent Dies?

If the deceased parent was the custodial parent or primary caregiver, and the other parent is not in the picture, courts may appoint a guardian for minor children.

  • Guardianship is a separate legal process from inheritance 
  • The guardian manages the child’s inheritance until they reach legal age 
  • If the child inherits significant assets, a trust might be established for their benefit

What Are the Steps to Take When a Parent Dies Without a Will?

man in a suit hands dollar bills to another person

  1. Notify the court: File for administration of the estate in probate court. 
  2. Identify the heirs: Typically, children and spouse are the primary heirs. 
  3. Inventory the assets: List all property, debts, and financial accounts. 
  4. Pay debts and taxes: Estate debts and taxes must be paid before distribution. 
  5. Distribute the remaining assets: Follow the intestate laws to distribute assets among heirs.

How Long Does It Take for a Child to Receive Their Inheritance?

The timeframe depends on the complexity of the estate:

  • Small estates with few assets and no disputes might be settled in a few months. 
  • Larger estates or those with debts, multiple heirs, or disputes can take a year or more. 

During probate, the court supervises the process to ensure all legal steps are properly followed.

Can Children Contest the Distribution if There Is No Will?

Yes, children can contest the administration if they believe:

  • The estate is not being distributed fairly under intestate laws 
  • The administrator is mismanaging the estate 
  • Fraud or undue influence affected the process 

However, without a will, the court generally follows the clear rules of intestacy.

Summary

  • Children are usually the primary heirs under intestacy laws. 
  • The estate is divided equally among children if no spouse survives. 
  • If a spouse survives, the estate is split between the spouse and children. 
  • Adopted children have the same rights as biological children. 
  • Stepchildren usually inherit only if legally adopted. 
  • If a child predeceases the parent, their share goes to their descendants. 
  • The probate court oversees the asset distribution process.

Final Thoughts

Losing a parent is difficult, and the added complexity of dealing with an estate without a will can be stressful. Understanding what children are legally entitled to helps families navigate the process more smoothly. It’s always advisable to consult with an estate attorney to clarify local laws and protect your rights.

If you’re a parent, creating a will is the best way to ensure your assets are distributed according to your wishes and to provide peace of mind for your children.