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.
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 ˝ (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.
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 is Florida Probate?Florida Probate Guide - a discussion of the different types of probate options in Florida.
- Four Grounds to Contest a WillSimply being unhappy with the distribution of assets or the delay of the probate proceeding in general is not sufficient grounds to successfully contest the validity of a last will and testament. An heir of an estate or a beneficiary of a prior will can commence a will challenge based on a number of enumerated grounds.
- Knowledge Is the Best Weapon Against UncertaintyAs you embrace your life changes and follow the goals you set, we would like to encourage you to include Estate Planning on your list. Most of us do not realize the importance of having a Last Will & Testament, a Living Will with Medical Surrogate, Prenuptial/Post-nuptial Agreements, or a Power of Attorney until it is too late. Do you know which option would suit you and your family best?
- Contesting a TrustWhile many individuals have heard of contesting a will, a trust may also be contested in certain circumstances. If a trust is successfully contested, the trust can be modified or even eliminated in some situations.
- Debunking Two Common Florida Probate MythsPeople unfamiliar with Florida probate law can make some unfounded assumptions about what happens to debt and property after a family member dies. Here are two of the most common myths and the actual facts.
- Finding the Right Probate and Estate AttorneyWhen it comes to dealing with the loss of a loved one, one of the last things that any family member wants to do is call a probate or estate attorney. This is understandable given that the family is grieving with the loss. Finding a lawyer should be not be a complicated matter. Finding the right lawyer to handle an estate, whether it requires planning or for the will to be probated, however, requires due diligence.
- Estate Planning: Choosing Per Stirpes or Per Capita Distributions“Per Stirpes” literally means “by roots or stocks; by representation” and is used interchangeably with “right of representation” by estate planning attorneys when referring to a particular method for distributing assets of a decedent. Another common method for distributing assets is referred to as “per capita”. Using ther method, each member of the same generation of a decedent will receive an equal share of the decedent’s estate.
- Benefits of a Financial Power of AttorneyMany of our estate planning clients have heard about a Financial Power of Attorney but are not clear as to why they should have one or how they might benefit from having this legal document. At the outset, it is important to consider, “Who takes care of my financial interests if I become incapacitated and unable to handle my own financial affairs?”
- Estate Planning - What You Need To KnowFind out how an estate plan can protect your family and what should be in your estate plan.
- A House Divided: Avoid Estate Planning DisasterYour relative's estate plan is a mess - but your family doesn't know this yet. Planning isn't really the problem: there is no planning. And if there's no planning, then a house will pose a special challenge.
- 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 decedent’s 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.