Inheritance Law




What are Inheritance Laws?

Inheritance Laws are those statutes and regulations affecting who is entitled to receive what from the estate of a deceased relative. Some relatives, such as spouses and children, have a right to claim an inheritance and can even do so despite the express terms of a will.

Spouses

In most circumstances, the law prohibits leaving a spouse completely out of a will. In states that follow a community property system (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,Wisconsin, and Alaska) each spouse automatically owns half of what they both earned during the marriage unless they have a written agreement to the contrary. As a result, either spouse can do what he or she likes with his or her half-share of the community property and his or her separate property. Everywhere else, while there is no rule that property acquired during marriage is automatically owned by both spouses, most states give a surviving spouse the right to claim either 1/3 to Ĺ (depending on the jurisdiction) of the deceased spouse's estate in order to prevent anyone from becoming disinherited. This is true regardless of the terms of the will, and usually in spite of them. These provisions of law apply only if a surviving spouse petitions the court for his or her share per the statute. If he or she does not object to receiving less, the will is honored and the decedent's last wishes will be carried out as instructed.

Children

Most states grant no rights at all to children to inherit from their parents. However, in a few circumstances children may be entitled to claim a share of a deceased parent's property. Most states also have laws to protect against accidental disinheritance. That is, if a will predates the birth of a child and leaves property to the child's siblings but the will was never revised after the child's birth, the law presumes the parent did not intend to omit the newest child, giving that child certain rights to inherit. In some jurisdictions, these laws can apply not only to direct children, but also to any grandchildren of a child who has died. If one wishes to disinherit a child or grandchild, the will should clearly state this intention or else that survivor may have a legal basis for challenging the will.

For more information about Inheritance Laws, you may review the materials found below. Also, given the obviously complex nature of these laws and the ways they interact with other areas of estate planning, it may be wise to consult with an attorney before preparing a will, claiming an inheritance through court proceedings, or opening any other actions in probate. You can find a list of attorneys in your area who focus their practices on estate law by visiting the Law Firms page of our website.

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Articles on HG.org Related to Inheritance Law

  • What Are the Grounds to Contest a Will?
    Because wills provide the final word from a decedent, courts are hesitant to step into the decedentís shoes and attempt to speculate on his or her intentions. However, heirs may be unhappy with the terms of a will, especially if they are given a small portion of the estate or left out of the will completely. An individual may be able to contest a will if legal cause exists to do so.
  • Do Children Have the Right to Inherit?
    Whether a child has the right to inherit largely depends on whether the person who died has a valid will or not. With a will, the testator determines how he or she wants probate assets handled. Without a will, state laws of intestacy govern.
  • Inheritance Laws
    Inheritance laws are determined on the state level. These laws come into effect when the person who died left no will or his or her will is invalidated due to not following legal formalities, being the product of undue influence or duress, the testator lacking the requisite capacity or for other reasons as determined under state law. Additionally, some inheritance laws take effect even if a valid will was left and if the will says something that contradicts state law.
  • What Is the Process of Probate?
    The probate process is the legal process that is undertaken after a person dies. This process helps to identify the individualís rightful ownership interests, pay off remaining debts and distribute property in accordance with the will or the laws of intestacy. This process involves several stages.
  • Components of a Good Estate Plan
    A thorough estate plan should be designed to avoid probate, save on estate taxes, appoint someone to act for you if you become disabled, and protect assets if you need to move into a nursing home.
  • Holographic Wills: Pros and Cons
    Having a will helps prevent a testatorís estate from passing through the laws of intestacy. However, if the will is not executed properly, these rules can apply if the will is considered invalid or does not completely dispose of all property under the will.
  • How Do Inheritance Rights Vary Between Legitimate and Illegitimate Children?
    Once, expectant parents were quite concerned about marrying before a child was born in order to protect that child's claims to legitimacy. There was a time when legitimacy was a very important legal consideration, particularly when it came to inheritance rights. Today, the role of legitimacy in a child's birth rights is very different than it once was.
  • Contributing to Your Grandchildren's Future
    When estate planning, gifting assets to your grandchildren can do more than help your descendants get a good start in life; it can also reduce the size of your estate and the tax that will be due upon your death.
  • The Duties of a Trustee: How to Choose, How to Prepare
    It is not unusual for a family member to be named as trustee for a trust that benefits a number of other family members. However, just because you are related to someone does not necessarily make him or her a good trustee.
  • Setting up Your Wills and Trusts with an Estate Attorney
    If you or someone you love is planning their estate, it can be a difficult and complicated process trying to wade through all the legal rules and regulations that pertain to writing your will and related documents. Setting up wills and trusts can be especially difficult because the task is often mixed in with a variety of issues such as ill health, complicated family histories, and other emotional dilemmas, which are commonly faced toward the end of a lifetime.
  • All Estate Planning Law Articles

    Articles written by attorneys and experts worldwide discussing legal aspects related to Estate Planning including: estate and trust, inheritance law, personal property, probate, wills.

Inheritance Law - US

  • ABA - Real Property, Trust and Estate Law Section

    The Real Property, Trust and Estate Law Section is a leading national forum for lawyers, and currently has over 30,000 members. The Real Property Division focuses on legal aspects of property use, ownership, development, transfer, regulation, financing, taxation and disposal. The Trust and Estate Division focuses on all aspects of trusts, estate planning, employee benefits, insurance, and probate and trust litigation.

  • Estate and Gift Taxes

    One of the oldest and most common forms of taxation is the taxation of property held by an individual at the time of their death. Such a tax can take the form, among others, of estate tax (a tax levied on the estate before any transfers). An estate tax is a charge upon the decedent's entire estate, regardless of how it is disbursed. An alternative is an inheritance tax (a tax levied on individuals receiving property from the estate). Taxes imposed upon death can provide incentive to transfer assets before death.

  • Inheritance Law - Definition

    In civil law jurisdictions it is called succession. The concept depends on a common acceptance of the notion of private ownership of goods and property. Under some systems land is considered communal property and rights to it are redistributed, rather than bequeathed, on the death of a community member. In many countries a minimum portion of the decedentís estate must be assigned to the surviving spouse and often to the progeny as well.

  • Intestacy - Wikipedia

    Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate." Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

  • IRS - Inheritance and Estate Taxes

    The Estate Tax is a tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death. The fair market value of these items is used, not necessarily what you paid for them or what their values were when you acquired them. The total of all of these items is your "Gross Estate." The includible property may consist of cash and securities, real estate, insurance, trusts, annuities, business interests and other assets.

  • State Intestacy Laws

    Do you really know what happens to your property if you die without a will? Some common misconceptions include everything being given to charity or to the state. Another common misconception, with more serious consequences, is the belief that a surviving spouse is always granted all or substantially all of the deceased spouse's intestate estate.

  • Uniform Simultaneous Death Act

    USDA creates default rule that one must survive another by 120 hours to avoid disputes caused by simultaneous or quickly successive deaths of persons between whom property or death benefits pass on the death of one survived by the other.

Organizations Related to Inheritance Law

  • American College of Trust and Estate Counsel

    The American College of Trust and Estate Counsel is a national organization of approximately 2,600 lawyers elected to membership by demonstrating the highest level of integrity, commitment to the profession, competence and experience as trust and estate counselors.


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