This week, our lawyers explain to one estranged daughter how she might be able to delay the closing of her biological father’s estate while continuing to prove legal paternity.
The Question: Is there any way to postpone settling an estate?
Dealing with an issue in which a friend of mine has a sister whose father passed away recently, and died without writing a will. Some personal things happened at the time of her birth, and he was left off the birth certificate.
Even though the paternity test has been taken with the state, there has been no word for over a year – despite constant calls and emails. COVID-19 has also worsened this situation.
The estate is closing today without declaring her an heir, and won’t/can’t do so without his name on the birth certificate.
Is there a way to postpone the closing? Anything else she can do?
The Answer: To postpone the closing of the estate, you would need to file a motion with the court.
First of all, our condolences to your friend’s sister. We hope that her father has found peace.
As to the legal side of her situation, you’d need to file a motion — that is, make a formal request — with the court that officially objects to the closing of the estate, outlining the reason why.
At first glance, her situation of a year-plus odyssey trying to prove legal paternity seems like a solid reason to delay the closing of the estate.
It’s especially helpful that she sent the DNA sample to the state for testing. There’s probably an official paper trail supporting the details of her claim, thereby strengthening justification for postponing the estate’s closure.
In any case, she would probably find it best to work with a local attorney in the court’s jurisdiction so that the motion can be properly worded and filed to postpone the estate’s close.
This question is a great reminder to get your wills written or updated! You probably won’t want to pass on without making your wishes expressly and legally known.
Bonus Question: What happens if you die without a will in Maryland?
If you die without a will, as this poster’s father did, then the state steps in to divide your property for you. In broad strokes, for those without a will:
- If you die with a surviving spouse, then that spouse gets half the property, plus $15,000 additional if there are no surviving parents or children. If no parents or children, then the spouse gets everything.
- If you die with both a surviving spouse and children, then any property is split in half: Half going to the spouse, and half split between all children. (Incidentally, this law is probably a large part of the reason why the poster’s friend’s sister is adamant to prove legal paternity even after death. If biological paternity can be proven by the state, then she’s entitled to a decent percentage of her father’s property.)
- If you die with a surviving spouse and surviving parents, then any property is split in half: Half going to the spouse, and half going to your parents.
- If you die without spouse, parents, or children, then the state goes through a very long line of possible heirs — all the way to your great-grandparents’ other descendants, who probably have never heard of you before the estate’s executor reaches out.
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Our general disclaimer: We’re lawyers, but not necessarily your lawyer, and do not represent the individual who asked this question. We’re providing this information for general educational purposes based on the publicly available information provided by the anonymous Internet user. Any number of details may change how this individual’s attorney may pursue this legal situation, differently from how we suppose above. If you have a similar question, then you should consult with a lawyer about your specific situation to get a “real” response!