Q: If my father's widow didn't open up his estate for probate and denies there's a will, what recourse do I have as an heir
If in fact we can't find the will, is the surviving spouse entitled to all the deceased spouses assets even if there are surviving children?
A:
An interested person, such as a child or other family member of your father, can file an application or a petition with the probate court to open an estate and be appointed personal representative ("PR") of your father's estate. However your father's widow would have first priority to be appointed PR, and she would need to be served with notice of the proceedings so she has an opportunity to appear and be appointed PR if that is what she wants.
There may be other reasons why no estate was opened - for example, maybe your father didn't own any property that requires probate. This could be the case if your father owned all his property jointly with his widow, because at death his part of the property would've passed to his widow by operation of law. It would be best for you to consult with a qualified probate attorney in your area to review all the facts and circumstances in your case, so you can find out your options and get advice tailored to your particular situation before moving forward.
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