As a stepchild and the only child living, can I manage my stepfather's estate?

A fellow caregiver asked...

My 82-year old stepfather died on July 16, 2010. Tragically, within 5 days of his death, my half brother, his only child, died as well. For health reasons, it was always assumed by me that my half brother would inherit all the property and would also take care of settling the estate when dad died. Incidentally, our mother died in 2005, so she's not in the picture. Basically, there is no one left in the immediate family but I.

The police were involved with my brother's death because I had to call to get someone go by the house to check on him when he didn't answer the phone or return my calls (messages left). The reason for this was because I live in Alaska and he lived in Las Vegas, NV. Since his body was found, the authorities have been talking to me and have instructed me to hire a probate attorney, which in the status of stepdaughter, I am hesitant to do at this point. I explained that I was a stepchild and they seemed to think I would be the next in line to take care of the estate anyway. My question would be, is this true? Do I have the legal standing to do this?

The only blood relatives left of my stepfather's are cousins, two that I know of that are close to his age and of course, younger ones, all living in South Carolina.

Any help you can give me would be greatly appreciated.

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Through no fault of your own, you are the middleperson in what may be a bit of a complicated probate situation"”but one that may mean you are entitled to take at least a share of the property in the deceased relatives' estates.

Here is a quick review of the possible issues involved, with the hope that will help you focus, ask the right questions and get the kind of help you may need to sort out the matters involved.

The first complication is whether or not there were wills to control the situation.

You don't mention whether your stepfather or half-brother died with wills that named an executor"”or person to gather up and divide the property owned at death as directed. But I'm guessing there were no wills involved.

When there is no will naming an executor, state law provides a list of people who are eligible to fill the role, and that list differs somewhat from state to state. If a probate court proceeding is necessary, the court will choose someone based on the priority list set out in state law. Most states make the surviving spouse or registered domestic partner the first choice. Adult children are usually next on the list, which may or may not include stepchildren who were not legally adopted, followed by other family members. To find out the controlling law, do an Internet search of the state in which your stepfather died, as well as the words "intestate succession" if you believe he died without a will.

This brings up another potential complication: whether or not you were formally adopted by your stepfather. In some states, stepchildren who were not adopted also have the right to inherit, but in others, they do not rank up in the hierarchy. Again, best for you to do a quick check of the letter of the law.

A third possible complication may be in the laws that control whether and how long a person needs to survive to inherit property. Most require that a person"”here, your half-brother, would need to live a certain amount of time longer than the deceased person"”here, your stepfather. In many states, the required period is 120 hours, or five days, which is very close to the time you mentioned for the death. In some states, however, an heir need only outlive the deceased person by any period of time"”theoretically, one second would do. Again, check the intestate succession laws to learn the rules in your situation.

Armed with this preliminary information, the advice you got to contact a probate attorney seems wise. Make sure it is someone who is familiar with the innerworkings of the laws in the various states involved. And know that if you are not able or willing to serve as the estate administrator or executor, you cannot be forced to do so; the court administering the matter can appoint someone for the task.