Most people have heard of a last will and testament, which is a legal document that provides instructions for the estate administration of a deceased person’s assets and property. However, when someone dies without a will, it can be difficult for the family to determine how the estate will be distributed.
Fortunately, there are inheritance laws that dictate the administration of estates for individuals without a will, also known as intestate succession. Learn which kinds of the intestate estate need to be passed by a will, and which relatives are entitled to inherit estate property and assets.
If you’re thinking of making a will, contact a trusts and wills attorney to discuss your case.
Do all types of assets require a will to be inherited?
Certain kinds of assets don’t require a will to be passed to a beneficiary, including:
- Assets held in transfer-on-death (TOD) account, deed, or title document;
- Bank accounts, real property, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship;
- Funds in an IRA, 401(k), or retirement plan with beneficiaries named;
- Funds in payable-on-death (POD) bank accounts;
- Proceeds of life insurance; and
- Property held in trust.
If you want to know who has the right to inherit these kinds of property, you’ll have to look at the paperwork to find the beneficiary or co-ownership designation. It’s best to seek help from an estate planning attorney who is more knowledgeable in your state’s estate law.
Who’s in charge of settling the estate?
In the absence of a will, the court lists family members qualified to take the role of an executor. The court will also choose from a priority list if a probate court proceeding is necessary. In most states, a surviving spouse is the first choice, followed by adult children and other relatives. If you’ve been chosen as an executor, make sure to consult with an estate and trusts attorney to decide whether you should accept the responsibility of administering an estate.
Who gets a share of the estate?
Every state has an inheritance law that directs who’ll be inheriting the estate of a person who died. Typically, only the surviving spouses, domestic partners, and blood relatives of the deceased person can inherit in an intestate succession. The spouse usually takes the largest share of the estate, and even all of the property if the person who died had no children. On the other hand, distant relatives generally only get a share if there are no surviving spouse or child.
Who’s considered a spouse?
It’s important to understand the legal definition of a spouse in settling an estate. While it may seem obvious who is referred to by the term “spouse,” certain situations can make it difficult to qualify a surviving spouse.
If your state considers common-law marriages, consult with a family law attorney or check your state laws to determine under what circumstances you may be considered a spouse.
If the couple legally separated or had begun divorce proceedings before the other spouse died, a judge may have to make a ruling on whether the surviving member of the couple is still considered a spouse.
Same-sex marriages are now legal in every US state, which means that if one member of the couple passed, the other will legally be considered a surviving spouse. On the other hand, a same-sex couple registered as a domestic partner or a civil union partner may not be considered a spouse. Check with your state law or seek legal advice from a local family lawyer to determine the legal status of your relationship in your state.
Who’s considered as children?
The term “children” is often used to refer to direct descendants who are heirs of the estate. However, there are other types of children that may or may not be qualified to inherit.
- Legally adopted children inherit from their adoptive parents just as biological children do.
- Most states don’t include children not legally adopted by the deceased person in their definition of children for purposes of inheritance, but this depends on the circumstances of the relationship.
- Foster children typically don’t inherit from their foster parents.
- Placing a child for adoption removes the legal relationship between the parent and child, including the right to inherit.
- Children adopted by a stepparent may still inherit from their biological parents, depending on the state law.
- Children born after the parent’s death inherit the same way children born during the parent’s life do.
- Children born out of wedlock always inherit from their birth mother but may show some kind of proof to inherit from the father.
If you need legal assistance in administering an estate, contact our experienced family law attorneys at Waldron Law Group to schedule a consultation today.