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San Antonio Express-News, 9/4/98

Informal Adoption and Inheritance

© 1989-2004, Paul Premack

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Dear Mr. Premack: My mother is in her mid-80’s now. I was only two when I was adopted by her and my father, who passed away last year. I’ve seen papers that they actually went to court to adopt me. I have a younger sister, if you can call her that. My folks took her in when I was six, and raised her as part of the family. But they did not go to court to adopt her. My question is this: my father did not have a Will. Did my "sister" inherit any of his money? – P.J.

When a person dies intestate – without a Will – Texas law decides who is going to inherit the remaining assets. If there are no children from earlier marriages, then current Texas law leaves everything to the surviving spouse. Your mother is the one who inherits, not your sister and not you.

What happens when your mother dies? You want to know more about your sister’s status as an child and potential heir.

Your mother can control the situation by making a Will. In it, she can select her heirs. She can leave everything to you, to your "sister," or to the next door neighbor. A Will can eliminate all uncertainty in this situation. She can also direct to whom specific assets should pass. For instance, she could give someone a "right of survivorship" on her bank account. When she dies, it belongs to that person. It does not pass through her Will or by state intestacy law.

What if your mother refuses to make a Will, or cannot make other arrangements due to illness? Then her assets will also pass through the laws of intestacy. Your "sister" could claim in probate court that she should be included as an heir. If her claim is valid, she would share equally with any other children in your parent’s family.

Is your "sister" the legal child of your parents? They are not her natural parents, and they did not go through a legal adoption proceeding. Her only claim would be she was adopted "by estoppel." This happens when a "parent" agrees with a "child" to adopt that child, and that child behaves in a loving and supportive fashion to the parent.

A recent case decided in the Texas Court of Appeals—Spiers v. Maples—made it easier for a person to claim that they were adopted by estoppel. The court said that when there is an agreement to adopt, and acceptable performance by the child, the "child need not prove that she knew about the agreement to adopt and acted in reliance on that agreement." It is enough that the child is raised as part of the family and acts like a member of the family.

If your "sister" was kind, loving and attentive to your parents then she can claim to be their adopted child. She is likely to inherit from your mother unless your mother makes other plans.

Prior column: Do mid-size estates always avoid probate?
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Disclaimer: This column answers a specific legal question offered by an individual in the South Texas area. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice that meets your individual needs. It may give you a solid basis for discussion with your own attorney. Also, please be aware that laws change. You should consult with your personal attorney before you take any action on this or any legal issue.

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