What Are the Basic Principles of Inheritance?

by David Carnes
Inheritance is determined by state probate judges.

Inheritance is determined by state probate judges.

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How your property is distributed after you die depends on the probate law of your state. If you die with a valid will, your property will generally be distributed according to your will, although certain restrictions exist. If you die without a will, your property will be distributed according to state laws. Taxes might be taken out of your estate before any assets are distributed.

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Requirements for a Valid Will

Your will must be valid under state law to be enforceable. It must clearly state that it is designed to provide instructions on the distribution of your property after you die. It must provide reasonably clear instructions on the distribution of your property. Many states require you to name an executor, who is responsible for administering your property during the probate process. You must sign your will in the presence of two or three witnesses, depending on the state. Your will may be declared invalid if you were not of sound mind when you signed it, or if someone exerted "undue influence" over your bequests.

Restrictions of Will Bequests

In most states, you cannot completely disinherit your spouse without his permission--state laws require you to leave him a certain minimum share. You can disinherit your children, however, in every state except Louisiana. Except for these restrictions, you are generally free to leave your property to whomever you please. Nevertheless, your choice of heirs may raise doubts. Leaving your estate to your cat may raise doubts about your soundness of mind, for example, while leaving it all to your lawyer may raise questions of undue influence.

Intestate Succession

Intestate succession laws determine how your property will be distributed if you die without a will, or if your will is declared invalid. Although state laws differ, 19 states have chosen to enact some version of the Uniform Probate Code. The Uniform Probate Code was drafted by legal scholars in an attempt to make state probate laws more consistent with each other. Under the Uniform Probate Code, your estate will be distributed among your relatives.

Distribution Among Your Relatives

Under the Uniform Probate Code's intestate succession laws, your spouse will be given first priority in inheriting your estate. He may be given all of your estate, or the first $200,000 plus 75 percent of the rest of it, or some other sum depending on which of your other relatives survive you. Your descendents are given second priority -- they may get nothing if your spouse survives you, they may share in any amounts not given to your spouse, or they may share your entire estate if your spouse does not survive you. Your parents and siblings will be assigned lower priorities. If you die without living relatives, your estate will pass to the state government.