Many Wills express the testator's wish that his or her estate be shared among his or her children. In some families, it's obvious who is meant by the word "children", while in other families it is less so. In this post I'm going to look at the legal rights of adopted children when a parent - biological or adoptive - passes away.
As with all general rules about what is meant by certain legal words or phrases, remember that if the person's Will says something contrary to the general rule, the Will must be followed.
When an adoptive parent passes away, an adopted child has exactly the same legal status as a biological child born to that parent. When the Will makes a gift to "my children", adopted children will be treated the same as biological children when it comes to inheriting. Every province and territory in Canada has legislation in place that creates that right.
What if the biological parent of a child who has been adopted should pass away? If the biological parent leaves a Will that divides the estate among his or her children, this will not include the child who has been adopted by someone else. According to the law, the child is no longer that person's child, because of the adoption. If the biological parent wanted to leave something to a child who was adopted, he or she could do so by specifically mentioning that child's name in the Will.
It's important to note that when I say "adopted" children, I'm referring to children who have been legally adopted under provincial or territorial law. On occasion, a child will be raised in a family that treats the child as its own, but never formally adopts the child. The child might not know one or both of the biological parents, and may have a strong family bond with the new family. In a case like that, the child is not considered legally adopted. The child is still the child of its biological parents, not the parents who voluntarily raised him or her.
This sometimes creates interesting situations for blended families, and is one of the reasons I always urge the parents of blended families to spend some time with an estate-planning lawyer to make sure their Wills are going to create the outcome they want.
in the case where a child has changed their name to a stepparents name are the still intitled to an enharritance
ReplyDeleteIs there anyone to help a person that is mentally ill and not capable of pursuing an inheritance. I have spent my whole life dealing with depression and it has caused me to be isolated from everyone.
ReplyDeleteYou can sign a Power of Attorney that allows a person to pursue the inheritance for you. This can be anyone you trust, such as a family member, friend, or even a lawyer.
DeleteIf you don't have anyone you know and trust to do this, consider contacting the Public Trustee in your province to see if they are willing and able to help you.
Lynne
Hi Lynne
DeleteI am posting on this thread because the other threads are full.
Can you recommend a colleague in Vancouver, who has an expert knowledge of life estates?
Would like to know if I can start file a partition for sale of a life interest property owner by me and my three siblings.
Oldest brother has a life interest.
Property is abandoned 6 months per year Oct the March he is a snowbird.
and the life tenant.
Already 10 thousand dollars in damage to unit below because of a water leak in the unit.
Would this be enough info to show waste.
Condo has a no rental's allowed, clause in the strata bylaws and we the 3 remaindermen are not allowed any access. We want it sold so we don't become responsible for more damage, we realize the lifeb ten ant will receive most of the profit from the sale, he is 65 years old.
Sincerely
Carol B
Vancouver, BC
Hi,Lynne,thanks for those informative information.
ReplyDeleteMy mother-in-law passed away 11 months ago, my husband is named as the first executor in her will, his brother is the second one. Unfortunately, the sibling hold the orginal copy of will without any chance to return, and seems he want to be the executor as he has tried to probate the estate , but failed in a result.
In this scenario, if he won't return the orginal copy, is the will still valid?
My mother-in-law had her will made in 2008 after she was diagnosed a cancer,my husband was the only executor. However, the orginal copy of will was missing, thus, about three months before mother-in-law deceased in 2016, the sibling brought her to make a new will which he currently keeps it.the content of inheritance doesn't change, but the sibling is named as the second executor. We recently found out the missing will while cleaning up mother-in-law 's room.
So will the missing will still valid if the new made one invalid ? Thanks.
here is my question i was raised by my grandmother she was like my mom she had legal guardianship ,i was mentioned in four of wills , but for seven years i was not allowed near her , and in her new will i was written out , should i fight the will.
ReplyDeleteHi Veronica. I really couldn't say whether you "should" fight it, because there is a lot more I'd want to know first. But I have to say, based on what you've said, that things look suspicious. It's pretty unusual for a person to make several similar wills only to suddenly make one that is really different. The fact that someone kept you away from her suggests that someone was controlling her and possibly directing her in the writing of her new will. The fact that she had legal guardianship of you makes it even less likely that she would suddenly terminate a relationship with you.
DeleteYou might just have enough to challenge the will on the basis that your grandmother was influenced to make a will she didn't really want to make. You'll need a lawyer for that. It's not easy or fun to do this kind of lawsuit and it could be expensive. I guess the question you need to answer is whether you can live with not looking into whether someone influenced her into changing her mind.
Lynne
i was wondering can a person that was never written into a will fight for a share
ReplyDeleteThis is so vague I can't even begin to answer it.
DeleteLynne
Hi Lynne,
ReplyDeleteMuch thanks for the very informative blog.
Here's my scenario:
My Aunt passed away and left a will with the estate going to friends, and the residue to her nieces and nephews (only surviving next of kin). It's a sizeable estate in in British Columbia. She had no spouse. My Father had said many years ago that she said she had a son as a teenager, but the father took the son when he was two, remarried, and the son was allegedly adopted by the new mother. Our aunt never spoke about having a child and there hasn't been any contact in over 55 years. When searching her house we could not find any birth records, adoption records, or marriage or divorce certificates. There are simply no facts to go with to try and locate the son (no name, etc.) Vital statistics said we can try and FOI for Government records, but because this all happened in the late 50s it might be very difficult to find anything. Probate has been granted, and our lawyer has advised us to wait the 210 days before dispensing the estate in case the "son" puts in a variation claim. My question is:
Does waiting 210 days make sense to you if the son was never notified in the first place? What are the best options in your opinion for this scenario?
If the child was adopted by someone else, he is not entitled to a share of his birth mother's estate. However, since you have no proof that he was adopted by anyone, you have to assess the risk of him showing up and making the claim. The fact that you didn't notify him doesn't change his rights, of course, but it does make it less likely that he'll show up. Your lawyer is being cautious, and that's to protect the executors (I'm assuming that's you). If you want to, you can go ahead and distribute the estate, but if that son does show up and claim his share, you'll have to either get the money back from the beneficiaries or pay it yourself.
DeleteLynne
My paternal Aunt who I reunited with about twenty two years before her death died in 2015. My birthmother told me after she died waited about 4 days and only let me know because I sent her an email. My Aunt at one time was going to make me her Power of Attorney. She had a piece of property that was worth about half a million. I have not seen the will and I found out that the house was not sold immediately as I was led to believe. Is it possible for me to request a copy of her will? How would I got about that?
ReplyDeleteMy Aunt died and I believe I was given misinformation. I reunited with my paternal birth family and had been connected closely to her for approximately 20 years. I have not seen the will. How would I go about requesting to see it?
ReplyDeleteHi Murphy,
DeleteThere is one essential fact missing from this question - were you actually adopted?
If you were legally adopted, you are now the child of that person who adopted you. You no longer have any legal relationship with your biological parents and therefore your biological aunt. This doesn't mean you couldn't have a personal relationship with her of course, and it seems that you did have that.
You do not have the right to see the will unless you are named in it to receive something from the estate. You would not be included in a group such as "my nieces and nephews"; you would have to be specifically named because of your adoption.
If you want to see if you can get a copy, the person to ask is the executor of the will. As I said, you may not have a legal right to see it, so don't be surprised if the executor says no. If that happens, ask for a written confirmation that you are not a beneficiary of the will. Not many executors are stupid enough to lie outright in writing.
You can also check with the probate court in the province where your aunt lived. If her will has been sent for probate, the will becomes a public document and you can simply ask for a copy. Not all wills are probated.
Lynne
Thank you for sharing your info. I truly
ReplyDeleteappreciate your efforts and I will be waiting for your next post thank you
once again.
If a biological child was adopted to another family and the biological father dies without a Will, is the biological child that has been adopted by another family eligible for next of kin or is it the deceased mother? He had no spouse or other children. He was not allowed to be part of this child's life since her early adoption.
ReplyDeleteHi Marie,
DeleteNo, the child who was adopted by someone else is no longer legally related to the biological father and cannot claim next of kin status. I don't know what you mean by "is it the deceased mother". The fact that he had no other spouse or children won't be relevant to the biological child.
Lynne
My father recently died with no will and no spouse. The family all have turned down to be executor making it fall to me. Shockingly I found out during my mother's previous marriage I was adopted out to her ex-husband. In previous response you said I would not be entitled to the estate, because legally I am no longer the heir. But a local lawyer told me I may still have a claim. Do you think he is mistaken? I'd hate to pursue a lost cause.
ReplyDeleteOn this blog, I can only offer general guidelines based on a paragraph of information provided. I would assume that if you consulted a lawyer, you brought all paperwork and gave all the details and talked it over extensively. Therefore I am happy to concede to the person who has had the opportunity to examine the situation closely.
DeleteIf you are not fully confident of the advice you've received from the lawyer you consulted, get a second opinion, again from someone who will have a chance to look at everything in detail.
Lynne
Hello Lynn,
ReplyDeleteMy biological father recently died. His wife is still alive. When she passes would I be entitled to any part of the estate?
That depends. Were you adopted by someone else? Were you named in his will? Did he even have a will?
DeleteLynne
Is crown ward status the same as adoption. If as a child the crown took me because my mom was not able to raise me (she was abusive), and as an adult now my mother recently passed. Am i eligable for a share in her estate? She died young and had no chance to write a will. So she died intestate.. We had great relationship last few years and i have even lived with her last few adult years. Ontario intestate laws states if the estate is worth under 200.000,00 the spouse gets it all. If over, spous gets 200.000,00 and remainding is split between spouse and children. Horrible relations between me and her spouse. Will the fact i was taken away by child protective services influence my right to the estate and share? I was never legally adopted or given to next of kin. Was only fostered in foster care and made a crown ward by the crown.
ReplyDeletemany people see adoption from foster care as a way to get a "free" baby. I'm not saying that is your reason for choosing younger children, but that is the reason there really is not a need for people to adopt young children from foster care. click here
ReplyDeleteA family I know, not my own addopted 4 children legally from their birth parents and they all took their last name. Things happened and children's aid took them all and placed 2 with other families and they ended up addopted them legally. The two others still have the last name of the family I know and has never been adopted again and are now adult age... Does the family I know have to include the two children that never got re-adopted in their will?
ReplyDeleteIm a child born to a Canadian mother and i was put up for adoption. I am wondering if after she dies I will be able to get a copy of her birth certificate (which apparently I would need a copy of the death cert to get)? I will need this for immigration purposes to the UK claiming her parents as UK citizens to get an ancestry visa. Thanks
ReplyDeleteIf your adopted , do your adoptive parents have to give some part of their inheritance or can they give everything to their biological child leaving the adopted child with nothing?
ReplyDeleteA legally adopted child is exactly the same as a biological child as far as inheritance law is concerned.
DeleteChildren who are adults and who are financially independent of their parents do not have a right to inherit from the parents, whether biological or adopted. That's the general rule, though there are always qualifiers and exceptions based on facts.
Can parents favour one child over another? Legally, yes. Unless you live in BC, this is the case.
Having said that, the reason for favouring one over another is important. Occasionally a parent is coerced or pressured into making a will like that, which wouldn't be valid. On the other hand, if the parent has not had a good relationship with the child or hasn't heard from the child in years, that is an acceptable reason to reduce that child's share. When I say "acceptable", I mean that the court would support, assuming the facts were proved.
It's a tough one. As I said, there is a general rule but each case depends on its own facts because there are dozens of laws and cases that criss-cross to give an answer to each question.
Lynne
Hi Lynne
ReplyDeleteMy mother passed away 3 years ago and me and my father have a very tumultuous relationshipnni have distanced myself for the past two years my mother never had a will h however she made it clear to both my father and I that she wanted her half to go to me no matter what.
I'd like
I'm an only child adopted when I was 3 weeks old my father has not complied with any of her wishes and presently gave all the contents of her safety deposit box which were supposr to be mine to my son. These were not her wishes. My father has now written a will exclude g me from anything I have been distant with him because of him not honoring her wishes. And I able to get my mother's half like she wanted? And if my father passes away am I able to fight the will
If your mother passed away without a will, then the law says who gets a share of her estate. It isn't up to your father. The law will behave as though she left no wishes, because verbal statements are of little use. It doesn't matter if you were distanced or not; it is the blood relationship that determines that you get a share.
DeleteHas your father been appointed by the court as the administrator of the estate? If so, that gives him the right to handle the estate, but still - he has to follow the law and not his own wishes. If he has not been named administrator then he has no right to give anyone anything.
In terms of your father's own will, he is entitled to make the will he wants to make. A lack of close relationship with a child is generally accepted as a good reason to exclude him or her. In my view, your best chance lies with your mother's estate.
One word of caution though is that your parents may have held most of their assets jointly, meaning they would pass to your father without ever being in your mother's estate. This means a bit of investigation on your part before you decide to take any action.
When you refer to "your mother's half", it sounds as if you mean on your father's death, you would get her half of their estate. Unfortunately it doesn't work that way. Once your mother passed away and property passed to your father, she doesn't own anything any more. Also, if she had wishes to leave something to you, she would have had to express them in a will.
Lynne
Hello, my uncle passed away with no will. He has no children or wife. His parents may or may not have legally adopted his cousin. If they did adopt his cousin, will that adopted cousin share the estate with his sisters?
ReplyDeleteHi Ken,
DeleteYes, if they legally, formally (i.e. through the courts) adopted another person, that person is the same as their biological children and will share in the estate. This assumes your uncle's parents have passed away already, since they will rank ahead of his siblings.
Lynne
Hi Lynne. I was married for 33 years, then divorced. My ex husband recently passed away. We have 1 daughter, and she is our biological daughter. My ex was married once before, however, upon that divorce, the children were adopted by him and took on his surname. Are they entitled to any of his assests? One has had no contact ever,candy the other a bit of contact for a few months. We live in Ontario. If I'm correct, because they were legally adopted, our biological daughter is the only one entitled to anything of her Dad's. Please, correct me if I'm wrong. She is his exectir on his will, and it states everything goes to her. Thank you.
ReplyDeleteA legally adopted child has exactly the same inheritance rights as a biological child. So, if your ex husband died without a valid will, his estate would be divided equally among his biological AND adopted children. The lack of a good relationship would not make any difference in those circumstances.
DeleteHowever, you have said that your ex has a will that leaves everything to his biological child. He is allowed to do that, assuming that his other children are adults and are financially independent of him.
Lynne
I recently found out through DNA that my father was the result of an affair and raised by a man who was not his real father - nor was he officially adopted. Both my dad and his biological father are now deceased, as is his only biological daughter who had o children. a) does my dad's estate have any claim to his biological dad's estate (still have no idea what was in that will) and b) is there a time limit on challenging the estate? It's hard to meet a time limit when you didn't even know you were related....
ReplyDeleteWhether your father would have had a claim against his bio father's estate depends on a number of things. You should know that an adult person who is not disabled and not financially dependent upon his parent has no automatic right to get anything from a parent's estate.
DeleteYou said that your father's father had a will. If the will named beneficiaries and your father wasn't one of them, then there is no claim. If the will happened to say "I leave my estate to my children" without naming names, then yes your father would most likely be included. This assumes that parentage could be established to the satisfaction of the court.
Yes, there is a time limit on challenging an estate. In most places and for most purposes it is 6 years. However, you need grounds to challenge an estate and you haven't mentioned anything in this note that sounds like a legal ground for a challenge. I think what you really mean to ask is whether it's too late to get in on whatever was being distributed to beneficiaries. As I mentioned, this will depend on the wording of the will.
There is also common sense to be considered. If your father's father died many years ago (which may not be the case since you didn't say so), there is unlikely to be a dime left in the estate to be distributed. You could go through years of legal wrangling about an estate that doesn't really exist anymore.
Lynne
Hi Lynne, my sister who is now in Switzerland was legally adopted in Philippines by my Canadian citizen aunt. She has never set foot on Canada due to a failed interview in the Canadian embassy which was a long time ago, she has not pursued it further as well as her adoptive Canadian mother. My sister has then carried and used my aunt's surname since her adoption. A few days ago, my aunt passed away. She also has a biological son in Canada who lived with her. Is my sister a rightful heir also in my aunt's estate even if they were not togethet and even if my aunt made a will excluding my sister? If so, how can she claim her right to the inheritance? I hope you can enlighten me. Thank you.
ReplyDeleteHi xoleen,
DeleteIf your sister was legally adopted by your aunt, then your sister has exactly the same rights as your aunt's biological son.
But what are those rights? That is going to depend completely on what she says in her will. People are allowed to leave their adult children out of their wills. Being someone's kid doesn't automatically entitle a person to anything. Your sister is apparently not a financial dependent of your aunt and you haven't said that she is disabled.
If your aunt's will leaves everything to her son, that is her prerogative. If the will is validly signed, witnessed, etc then your sister probably doesn't get anything. Your aunt has the right to do that. But if the will says "my children" without naming names, then your sister is entitled to an equal share.
Lynne
Alberta.
ReplyDeleteMy mother recently passed and I found out she was raped at 16 and had a daughter (would be my older half sister). My mother had her legally adopted straight from birth, she didn't even want to see her or know anything about her or have anything to do with her...my mother died without a will and I have paid in full for her funeral and I am getting a grant of administrator (Alberta) to deal with the rest of the intestate that I was not named as beneficiary. I was named as beneficiary on her life insurance. Is my legally adopted half sister entitled to a portion the remaining estate? My mother was never married or common-law and was single at time of death. My mother owned no property and the only thing left is the pension and a little money in the bank (not more than 100k combined).
Thank you
The key to this issue is whether the daughter was ever adopted by anyone. If she was legally adopted, she is no longer your mother's child and is not entitled to any part of the estate. If she was never adopted by anyone, she is still your mother's child, regardless of whether your mother had anything to do with her later. Court records will answer the question.
DeleteLynne