Intestate Distribution of West Virginia Estate with Child Out of Wedlock
Full Question:
Answer:
I'm assuming Fred wasn't married at the time of his death. When a person dies without a will, it is called dying intestate. The estate of a decedent (an estate is the sum of the decedent's property), who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property.
When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state. If a person is a sole owner, the fiduciary deed may transfer all the interest in the property to one or more heirs entitled to inherit under intestacy laws.
I suggest contacting the probate court in the county where the deceased resided or owned real property to see if a petition to administer the estate or a small estate case has been filed.
The following information is from the Social Security website:
"In order to receive survivors benefits, the deceased worker must have earned the required number of Social Security credits and survivors must meet the following requirements:
A widow or widower may be able to receive full benefits at age 65 if born before 1940. (The age to receive full benefits is gradually increasing to age 67 for widows and widowers born in 1940 or later.) Reduced widow or widower benefits can be received as early as age 60. If the surviving spouse is disabled, benefits can begin as early as age 50. For more information on widows, widowers and other survivors, visit Widows, Widowers & Other Survivors.
A widow or widower can receive benefits at any age if she or he takes care of the deceased worker's child who is entitled to a child's benefit and is younger than age 16 or disabled.
A deceased worker's unmarried children who are younger than age 18 (or up to age 19 if they are attending elementary or secondary school full time) also can receive benefits. Children can get benefits at any age if they were disabled before age 22 and remain disabled. Under certain circumstances, benefits also can be paid to stepchildren, grandchildren or adopted children.
A deceased worker's dependent parents can receive benefits if they are age 62 or older. (For parents to qualify as dependents, the deceased worker would have had to provide at least one-half of their support.)
A deceased worker's former wife or husband who is age 60 or older (as early as age 50 if disabled) can get benefits if the marriage lasted at least 10 years. A former spouse, however, does not have to meet the age or length-of-marriage rule if he or she is caring for his/her child who is younger than age 16 or who is disabled and also entitled based on the deceased worker's work.
The child must be the deceased worker's former spouse's natural or legally adopted child. "
The following are West Virginia statutes:
§42-1-3a. Share of heirs other than surviving spouse.
Any part of the intestate estate not passing to the decedent's surviving spouse under section three of this article, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) To the decedent's descendants by representation;
(b) If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
(c) If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but, if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
§42-1-3d. Representation.
(a) In this section:
(1) "Deceased descendant," "deceased parent," or "deceased grandparent" means a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under section three-b of this article.
(2) "Surviving descendant" means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section three-b of this article.
(b) If, under section three-a of this article, a decedent's intestate estate or a part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are: (i) Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
(c) If, under section three-a of this article, a decedent's intestate estate or a part thereof passes "by representation" to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are: (i) Surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allotted a share and their surviving descendants had predeceased the decedent.
§42-1-5. From whom children born out of wedlock inherit.
(a) Children born out of wedlock shall be capable of inheriting and transmitting inheritance on the part of their mother and father.
(b) Prior to the death of the father, paternity shall be established by:
(1) Acknowledgment that he is the child's father;
(2) Adjudication on the merits pursuant to the provisions of article twenty-four, chapter forty-eight of this code; or
(3) By order of a court of competent jurisdiction issued in another state.
(c) After the death of the father, paternity shall be established if, after a hearing on the merits, the court shall find, by clear and convincing evidence, that the man is the father of the child. The civil action shall be filed in the family court of the county where the administration of the decedent's estate has been filed or could be filed:
(1) Within six months of the date of the final order of the county commission admitting the decedent's will to probate or commencing intestate administration of the estate; or
(2) If none of the above apply, within six months from the date of decedent's death.
(d) Any putative child who at the time of the decedent's death is under the age of eighteen years, a convict or a mentally incapacitated person may file such civil action within six months after he or she becomes of age or the disability ceases.
(e) The provisions of this section do not apply where the putative child has been lawfully adopted by another man and stands to inherit property or assets through his adopted father.
(f) The provisions of this section do not apply where the father or putative father has expressly disinherited the child in a provision of his will.