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MissingBilly · May 24, 2015, 07:11 AM

My daughter's dad passed away and she wants her personal belongings which were her dads home when he died but stepmom won't give them to her. She is only 10 yrs old & was very close with her dad, she can't seem to grieve, she desperately needs these items to feel closer to her dad and help her cope with grieving.

Since these items were my daughter's personal things & NOT her father's (or stepmom's) they would not become part of his estate when he passed simply because they were in his home (in her bedroom there).

What should I do?

joypulv · May 24, 2015, 07:57 AM

It isn't so much a should as a can. Unless he left a will leaving her specific items, they all go to those named in his will, and with no will, most likely his wife, depending on state law where he lived.
You need to have a talk with your daughter about possessions being not as important as they may seem, even though it's understandable to want them. Work on some positive projects like her very own memento and photo album. Shop for a shrub or small tree to plant in his name, and paint DAD or something on a rock to put under it. You can help her grieve, and little rituals help as much as talking about him and her feelings. You could go for a walk together at a certain time each week just to think about him, and you could pretend he is with you.

You can approach the wife again, asking for just one or two things from a list. Do it politely, with some sympathy for her loss. Maybe the first time was too soon and she felt that her own grief wasn't recognized.

ScottGem · May 24, 2015, 08:34 AM

Why is the stepmom refusing? I can't imagine she would have use for a 10 yr old's clothing and other stuff. So there is something here you aren't telling us.

Legally, a 10 yr old doesn't really have their own possessions, the things were purchased by her parents. However, certain things would clearly belong to her, even if not legally. A court might grant an order for the step mom to turn them over.

But I have to believe this can be worked out between adults.

talaniman · May 24, 2015, 08:50 AM

I think you and the wife should work this out. Knowing why she refuses such a request may shed light on this, and consulting an attorney (free) may also be of benefit to you.

Fr_Chuck · May 24, 2015, 09:17 AM

I guess what is these belongings, They must have some value ?

If she was living there, she may also be considered a renter. (think about it guys) she has residence there. So could she address this, as a landlord that will not allow access to "home" and not allow them to get their belongings. I am not sure, housing court will hear the case, but there is a chance.

Beyond that, it also may be worth a try, to get an attorney, to write a demand letter and see what happens.

I could understand it better, if I knew what items we are talking about.

joypulv · May 24, 2015, 02:45 PM

A 10 year old cannot be a renter.

smoothy · May 24, 2015, 03:04 PM

As was said... depending on WHERE this is... without a will to the contrary, everything he had would become the wives property. A lot depends on where he physically lived when he died.

Fr_Chuck · May 24, 2015, 05:20 PM

But they established residency, most of the people we advise as "renters" are boyfriends and girlfriends, homeless people that someone let stay.

While they were not renting, they would have established a legal right to be a resident. Their other parent or guardian can sue on their behalf to have personal property returned. If I was living in a home, and that person died. Their death does not take away my ownership of my personal property.

kcomissiong · May 25, 2015, 08:18 PM

I'll just throw this in... several states provide for inheritance by a child that is not a product of the marriage when the deceased in intestate. As the other posters have noted, we need some additional information. Where are you located? Did your child's father die leaving a will, or was he intestate? What amount of time passed before the request was made? What are the items? Did the stepmother give a reason for the refusal? All of these will help the other posters to understand if this is something that needs to be pursued legally, or if you need to work with the stepmom/widow.

Please continue to focus on helping your daughter grieve and heal, without using the belongings as a crutch. Any further contact with the stepmother, or concerning an estate should come from you only; a grieving ten year old does not need to be involved. We're all very sorry that she is experiencing such a difficult loss.

AK lawyer · May 26, 2015, 06:56 AM

Originally Posted by smoothy

As was said... depending on WHERE this is... without a will to the contrary, everything he had would become the wives property. A lot depends on where he physically lived when he died.

OP wrote that the items in question were the child's property, not her father's.

And I disagree with ScottGem's statement that "... Legally, a 10 yr old doesn't really have their own possessions ...". Normally, a child doesn't have possessions worth fighting over in court, but (strictly speaking), if they are hers she has a right to them.

Also, OP should look into the child's inheritance rights. In many states, children inherit a set portion of their parent's property.

Originally Posted by MissingBilly

What should I do?

See an attorney.

ScottGem · May 26, 2015, 07:48 AM

Originally Posted by AK lawyer

And I disagree with ScottGem's statement that "... Legally, a 10 yr old doesn't really have their own possessions ...". Normally, a child doesn't have possessions worth fighting over in court, but (strictly speaking), if they are hers she has a right to them.

I did a little research on this and I think my statement is correct. Unless the child purchased items with her own money (a 10 yr old would not have much of their own money), anything purchased by their parents would still be considered from a legal standpoint to belong to the parents.

But that doesn't mean I think a court would not side with the child and not order items that were clearly a 10 yr old's to be returned to her. I think a court would. Actually I think a court would admonish the step mom and tell her to give the kid back her stuff and stop wasting the court's time.

AK lawyer · May 26, 2015, 08:06 AM

Originally Posted by ScottGem

I... Unless the child purchased items with her own money (a 10 yr old would not have much of their own money), anything purchased by their parents would still be considered from a legal standpoint to belong to the parents. ...

As I suggested, because few children have substantial amounts of their own money, the issue isn't likely to come up much. And if a parent purchased something with the clear intent that it would be the property of the child (such as a birthday gift, for example), it would be the child's property.

But to illustrate my point, let me give you a few examples:

I convey "Blackacre" (hypothetical real property) to a minor. Title would be in the minor, not the minor's parent(s), although the minor wouldn't have the legal capacity to convey or encumber it.

You open a bank account in the child's name. It is the child's not the parent's (although an adult such as one of the parents might need to go to court to be appointed conservator/ guardian, etc. If, to take this example further, such an adult does do what's necessary to enable some of this money to be spent, and the money is used to buy some personal property for the child. That property would clearly belong to the child, not the child's parents.

The child inherits a decedent's estate. It isn't the parent's, it is the child's. The parent cannot spend it (without court authorization).

The list can go on and on.