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we were raised by a step mother for 38 yrs, we had no bio mom

at any point in our...
we were raised by a step mother for 38 yrs, we had no bio mom at any point in our lives, our father was common law married to our step mother until he passed away 2010. She was our mom, we loved and cared for each other all these years, and she would not allow anyone to say step children or step mother, we were her children and she was our mom, she died in 2012, with a will, and left everything to us, her children, daughters and named us individually, she had a life estate and intended for us to inherit it, she had no bio kids of her own, no living parents, no siblings. a cousin she did not know now has come forward stating he is the heir because we were never adopted by her. What can we do.
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Answered in 10 minutes by:
6/29/2013
TJ, Esq.
TJ, Esq., Attorney
Category: Estate Law
Satisfied Customers: 12,474
Experience: JD, MBA
Verified
Hello and thank you for allowing me the opportunity to assist you.

Q: a cousin she did not know now has come forward stating he is the heir because we were never adopted by her.

A: Fortunately, there is little for you to do so far as the cousin is concerned. This is a very simple case. You wrote: "she died in 2012, with a will, and left everything to us." That is all that matters. A person may leave her assets to anybody that she chooses in her will. Accordingly, the only possible argument for the cousin to make would be that the will itself is invalid for some reason (e.g., forgery, etc.). If the will is valid, then the cousin has no argument. The assets are yours. So, the will should be submitted for probate so that the judge can rule that it is the last will and testament of your mother. Once the will is ruled valid, then the executor of the estate (probably you or your sibling) can distribute the assets to the people named in the will (you and your sibling). The cousin gets nothing.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

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Customer reply replied 4 years ago

she raised us as her children, she called us her children and daughters in her will . he states we do not qualify to inherit her life estate because we were never adopted by her and that her fathers will left it to her for life, since we were not born to her, or adopted by her we should not inherit. Also the definition in her last will and testament defines children and child as being born to or adopted by her. so the will contradicts itself. it was standard form and the definition should have been taken out by the attorney who was fully aware that we were her step children due to many other matters she had handled for us. we probated the will 16 months ago.

Hi again.

It's unfortunate that the will defines children such that you would be excluded. However, you also mentioned that the will specifically named you. The will controls, and if there is evidence that your mother was referring to you when she wrote "children," then you'd win that argument. Again, the cousin would almost certainly lose any argument that contradicts the will.

However, I will point out that a will only governs assets that the deceased person owned (and which is now owned by the estate). If your mother had a life estate, then her legal interest in the property expired when she passed. So, the will would not usually control what happens to the remainder. Whoever created the life estate made that determination. But the person who made the life estate (your step-grandfather?) could have complicated matters by stating that the remainder goes to your mother's legal heirs. If that was the case, then you may not be entitled to the remainder interest because you are not legally an heir. You're a beneficiary of the will, but that is different. Unfortunately, the fact that you were treated as her children does not make a difference in this situation. A judge would be forced to rule against you (even though he probably would not like to make that ruling).

As an aside, if you could prove that your mother's attorney was negligent, then you may have a case against him for malpractice.
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Customer reply replied 4 years ago

I was told that we may qualify for equitable adoption, we have multitudes of papers and people tha thave come forward to say she claimed us as her children, always. we gave around the clock care to her when she was placed on hospice. after the death of our father she became completely dependent on us for care. what are your thoughts

Hi again.

The Texas courts say the following about equitable adoption:

To show equitable adoption, a person must prove (1) the existence of an agreement to adopt and (2) performance by the child. Parties who live in a parent-child relationship based on an unperformed agreement to adopt the child do not create the legal status of a parent and child, but a parent's promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent's estate.The courts will recognize a child's right to inherit under the equitable theory of estoppel to prevent others from denying the child's right to inherit when efforts to adopt are ineffective because of failure to strictly comply with statutory procedures or because, out of neglect or design, agreements to adopt are not performed. Children claiming equitable adoption act in reliance on their belief in their `status' as children, not necessarily in reliance on agreements to adopt or on representations about adoptive status. Villarreal v. Acevedo, No. 03-03-00309-CV (Tex. App. 4/1/2004) (Tex. App., 2004).

As you can see, there needs to be an agreement to adopt which was not complied with, or efforts to adopt that were unsuccessful. If that is the case in your situation then you may be able to win that argument. I don't think the fact that your mother referred to you as her children is enough, however. Moreover, I'm sorry to say that the fact that you cared for her after your father passed is also not helpful in these legal arguments.
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Customer reply replied 4 years ago

when were young, all living at home she always told us that when she and our father got the fundstogether that she would adopt us, well that never happened. and the day she went to make her new will she told the attorney, I want to make sure that there is no question that these are my girls, all i have, and i want to be sure that i do everything possible, adotion or whatever to see that they get everything. The attorney told her you dont adopt middle age women, we can word the will to include them each equally. and she put children, and daughters, not step children. so here we are.

Hi again.

It may be possible to argue equitable adoption, but so far as the will is concerned, that probably shouldn't be necessary. I just don't see how the cousin could successfully argue that the will should be ignored. Of course, I don't have the will in front of me and I don't know exactly what arguments are being made by the cousin. But based on what you wrote, I don't see an issue with the will. The life estate is a completely different matter, as explained earlier.
TJ, Esq.
TJ, Esq., Attorney
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