What to do if my mother passed but did not have a Will and her husband did not include her biological children on the probate application?

UPDATED: Dec 27, 2013

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What to do if my mother passed but did not have a Will and her husband did not include her biological children on the probate application?

Asked on December 27, 2013 under Estate Planning, Virginia


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Sorry to hear about your mother.

Although the probate application can be amended to include the biological children, this won't have any effect because they won't inherit anything.

The reason the children (biological or adopted) won't inherit anything is that your mother did not leave a Will.  Since there wasn't any Will, the rules of intestate succession determine inheritance.  Intestate means dying without a Will.

Under intestate succession, your mother's surviving spouse inherits her entire estate.  If there had not been a surviving spouse, your mother's children (biological and adopted) would inherit equal shares of her estate.  For example, if there are three children, each child would inherit 1/3.  If there is a deceased child who had children, those grandchildren would inherit the share their deceased parent would have inherited had the parent survived.

Again, however, since your mother had a surviving spouse, he inherits her entire estate.

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