Legal Question in Wills and Trusts in New York

Re: passsing away without a will

A child has only limited rights to inherit from a parent, in Massachusetts. (Laws vary from state to state.) If your father names you in a will, you have the "right" to inherit according to the terms of the will, and based upon the assets titled in your father's name at death. He has no obligation to name you in a will.

If your father dies without a will, property titled in his name will pass according to the laws of intestacy in the state where he was domiciled (where he considered "home") at the time of his death. Children normally get a specified share, as does a surviving spouse, whether original or by remarriage.

If he has retitled the house in the name of your stepmother and him, she, as surviving spouse, would normally receive the house upon his death. Other possibilities are a tenancy in common (individual shares which do not automatically pass to the other at death), or certain types of trusts.

If he does make a will, and his spouse is unsatisfied with what she was left, she can "waive the will" and take certain statutory portions.

However, as Atty. Golden noted, in certain circumstances, the state of domicile, if providing Medicaid assistance, can lay claim to the house for reimbursement upon the death of both spouses. If this is a concern, your parents should see an elder law attorney to discuss what steps might be appropriate.

In short, children (in most states) do not have an absolute right (beyond the laws of intestacy) to inherit property from their parents - the parent has to be willing to name a child in the will, and assets must still be available after payment of creditors, including any state assistance for long term nursing home care.

Re: passsing away without a will

Depends upon how the house is titled.

If he is the sole owner, it becomes part of his estate and his widow, receives 50,000 plus one-half of the estate. You would receive the balance.

If his new wife is on the deed with him, she inherits the house.

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Re: passsing away without a will

First, your father has an absolute right to not make a will or any estate planning arrangements -- of course, this may lead to unintended consequences. (And if he hasn't made a will, he probably doesn't have a power of attorney, either -- if you think dying without a will can be messy and expensive, watch what can happen if he becomes incapacitated and needs a guardian.)

The first question is whether the house is owned by your father alone or jointly with his wife. If the house is owned jointly, it's hers. Any assets that go through probate will pass according to the laws of intestacy. She will get half and you will get half.

Please encourage your father to call me or another elder law attorney -- his estate could be substantially reduced if he or his wife ever need nursing home care and they have failed to make good plans.