Anaheim, CA asked in Estate Planning, Foreclosure and Probate for California

Q: My brother just died & I'm his only family his never been married & no kids we thought . He has no will.ill continue Q

Can this girl that now is stating that my brother is her father can she come in and take everything cars, accounts, 401k,etc. My brother's name is not on her birth certificate either

3 Lawyer Answers

Gerald Barry Dorfman

Answered
  • Probate Lawyer
  • Mill Valley, CA
  • Licensed in California

A: Sorry for your loss. If she really is his only child, she would inherit everything in his estate. If you or someone else are named as beneficiary on the accounts or 401K, those go to the named beneficiary.

Bill Sweeney

PREMIUM
Answered
  • Probate Lawyer
  • San Juan Capistrano, CA
  • Licensed in California

A: Assuming that the girl can prove that your brother is her biological father and your brother has not been married and has no other biological or adopted children, the natural child would likely be entitled to inherit your brother's estate by intestate succession.

California intestacy law determines what happens to a probate estate. Basically, the law states that a natural child of a deceased individual has the right to inherit “regardless of the marital status” of the parents. Also, in general, for purposes of intestacy, California states a parent-child condition exists if any of the following conditions are met:

A court has entered an order “during the father’s lifetime” establishing his paternity;

There is “clear and convincing evidence” presented to the probate court that the father, while he was alive, “openly held out the child as his own”; or

There is “clear and convincing evidence” of paternity, but it was “impossible” for the father to acknowledge the child as his own.

Sally Bergman

Answered
  • Estate Planning Lawyer
  • San Mateo, CA
  • Licensed in California

A: To add to what my colleagues have stated, if she were legally adopted by another person or couple, that adoption would have severed her rights to inherit from her biological parent(s). In addition, rules surrounding 401K's follow their own set of rules. If there was a designated beneficiary on those accounts, those designations take priority over other heirs. You should contact a probate attorney and go over details to determine exactly what your rights may be.

Gerald Barry Dorfman agrees with this answer

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