If my mother just passed andI wasn’t even mentioned in the Will, is that legal?

UPDATED: Dec 7, 2011

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If my mother just passed andI wasn’t even mentioned in the Will, is that legal?

Asked on December 7, 2011 under Estate Planning, Indiana


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

A parent may disinherit their child. Children typically have no automatic rights of inheritance from a parent. However, as a general rule in such cases, there should be specific disinheritance language in the Will since most states do have laws to protect against an accidental disinheritance. For example, if it appears the parent did not know about a child or if the child was born after the Will was signed. In such cases a child may have a right to “elect against the Will”; that is they have a right to certain assets.  Otherwise, if there is a Will and you're not in it, you are not entitled to anything.

You should be aware that some assets can be transferred outside of probate. For example, if your mother had a small estate, property may have been transferred by affidavit or other small estate procedure. Additionally, some assets may have been held as "joint tenants with right of survivorship", in which case the other joint tenant would have received your mother's share to property operation of law.  In addition, funds in an IRA, pension, 401(k), or other retirement plan bypass probate and go directly to named beneficiaries (unless the beneficiary named was his estate). The same holds true for any life insurance proceeds (and as to such proceeds, unless you were a named beneficiary. You may then want to check as to all of this as well.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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