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Ask Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 100053
Experience:  Fully licensed attorney in Texas in private practice.
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Our father passed in 1999. We were told by him and his wife

Customer Question

Our father passed in 1999. We were told by him and his wife at the time that she would take care of everything and give each of us or share from our dad. We have never received anything. She passed away a couple weeks ago. Her 2 daughter's are handling everything I guys. We asked what was going to be done with our father's possessions including his ashes and also his home which was paid off before they were married. They said that because they were married we do not get anything including his ashes. Is this worth going further with our should we just walk away with nothing to remember or father by. There are 5 of us.
Submitted: 2 months ago.
Category: Estate Law
Expert:  Ely replied 2 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am very sorry to hear about your loss and the situation that your family finds itself in. Please tell me - and this is very important:

1) Did your father have a WILL? Or, not sure?

2) Was a formal probate action ever filed for his estate in Court after he passed away?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 2 months ago.
We do not know if he had a will or not.
No because we were told she would do what is right. We did not want to be greedy.
Expert:  Ely replied 2 months ago.

Thank you.

First, a little background. Please forgive the rather dry read: When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts (those that do not have a pay on death clause) - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name. Also, non-titled items can also fall under this as well!

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the heirs' names.

If there was a Will, the beneficiaries are decided per the Will. If there was no will, the beneficiaries are decided by default succession law of the state. You can see the default succession law HERE - scroll down to Who Gets What.

Now let's apply that to the matter at hand. You do not know if there was a Will or not. Assuming that there was not, then his surviving spouse inherits the first $75,000 of his intestate property, plus half of the balance, and the children (i.e. you) inherit everything else. If there WAS a Will, it overrides that. There is no right to a certain guarantee for children under the Will - he could have written you out.

The problem is that no probate was filed - it seems. A Utah probate must be filed within three years of the decedent's death. Utah Code section 75-3-10. It has been more than 3 years. Probate may still be filed for the purpose of establishing heirs, but if there was a Will, it can no longer be probated. Someone in your situation may wish to talk to an attorney locally to see what options there are to possibly probate the estate either way, if possible, to get whatever one would get under the default succession laws. Any interested party can initiate probate.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 2 months ago.
Sorry I should have told you he lived and died in Nevada. What concerns me is why I am already being dismissed and assuming that I am not happy. If I just wanted an opinion and not a professional one I would have went elsewhere. I am already being told to rate when I haven't finished my conversation.
Expert:  Ely replied 2 months ago.
Hello,
My apologies for the verbiage about being unhappy, etc. Experts often deliver bad news and sometimes people shoot the messengers. This is just human nature. So the verbiage is there to remind the person that we do not make the laws and please do not allow any bad news to effect the rating. Nothing personal was meant, of course.
Allow me a second to amend my answer with the information you just provided...
Expert:  Ely replied 2 months ago.
Sorry I should have told you he lived and died in Nevada.
No worries. Now, the same answer applies as is for the most part, except the succession and statute of limitation laws differ . See here:
www.nolo.com/legal-encyclopedia/intestate-succession-nevada.html
The surviving spouse inherits all of the community property and half or one-third of his separate property; the children inherit half or two-thirds of his separate property.
The good news is that in Nevada, there is no time limit or statute of limitations to file for probate. Ergo, one may still wish to pursue this.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 2 months ago.
can you tell me if it was you would it be worth pursuing? Do you have an opinion on if we would possibly be able to receive his ashes?
Expert:  Ely replied 2 months ago.
While I cannot make that decision for you, i.e. whether this is worth pursuit as this is a private, family decision, I would say that if it were up to me, I would definitely consider it. Honestly however, the ashes normally are left with the surviving spouse, but other items (a significant portion) of his assets may be recoverable.
While I cannot make that decision for you, i.e. whether this is worth pursuit as this is a private, family decision, I would say that I would definitely consider it. Honestly however, the ashes normally are left with the surviving spouse, but other
Customer: replied 2 months ago.
His spouse has died 2 weeks ago. Would his ashes then be considered her children's? They had no children together.
Expert:  Ely replied 2 months ago.
This becomes very subjective. Assuming that his ashes would be given to her (estate), then technically they belong to whomever she willed them to (if she had a will), or, whoever gets her estate under default succession.
However, probate court is a court of equity (fairness) as well as law. The Judge is likely to then give the ashes to HIS family unless she specifically willed them to someone else.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Expert:  Ely replied 2 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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