Q: Mother filled out her will, but did not have it notarized. Was married. I am her daughter, can I legally have her ashes?
She left a letter behind stating she was going to leave her husband. She filled out her will and everything was to go to my sister and I, not her husband. Mom owned the property that he is now claiming. She was cremated and I just want to know if I can take her ashes legally. I cannot leave her in that house with him as my sister and I will never go back to the property. Plus, he has moved on to another woman, I just feel like I should get to have my mother with my sister and I, not some abusive man. Also, she died 3 days after surgery and I believe it can be proven that it was due to the Dr.'s negligence.
A:
An unwitnessed or "holographic" Will is NOT valid in Indiana, so your mother died, intestate. Under Indiana Code § 29-1-2-1, where a person who dies intestate and is survived by both children and a spouse, 1/2 of the estate passes to the spouse and 1/2 passes to the children, who take, equally. Possession of your mother's ashes is a subject that the family must decide. Neither the spouse nor the children have any presumptive preference of possession over them that I am aware of which would make this foolish and expensive to litigate.
If you believe that your mother's surgeon violated the applicable standard of care, secure the medical records and consult a medical malpractice attorney, asap, to learn whether you have a viable claim. If viable, your mother's spouse would share, equally with you and your sister, in any recovery, absent an agreement to the contrary.
Alexander Florian Steciuch agrees with this answer
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