The Difference Between a Will & an Inheritance

By Phil M. Fowler

A will is a legal document in which the drafter outlines what to do with his property after his death. An inheritance, on the other hand, is a gift of money or property from a deceased person after his death. If the deceased person had a will, the will provides instructions as to the persons who should receive an inheritance from the decedent. If the deceased did not have a will, state law will determine who receives an inheritance from the deceased person.

A will is a legal document in which the drafter outlines what to do with his property after his death. An inheritance, on the other hand, is a gift of money or property from a deceased person after his death. If the deceased person had a will, the will provides instructions as to the persons who should receive an inheritance from the decedent. If the deceased did not have a will, state law will determine who receives an inheritance from the deceased person.

Probate

When a person dies, somebody must inventory and dispose of the deceased person's belongings. The legal process in which that occurs is called probate. Probate is part of a state court proceeding watched over by a local judge, called the probate judge. The term "probate estate" refers to the total collection of the deceased person's money, real estate and other belongings. The probate judge approves all decisions regarding the distribution of the probate estate. To help with that effort, the judge will appoint an individual to serve as the estate administrator, sometimes called the personal representative, who is typically a friend or family member of the deceased.

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Testacy

A probate can be either testate or intestate, depending on whether the decedent created a legal will before he died. Testacy refers to a person who died with a valid will, while intestacy refers to a person who died without a will. Probate testacy proceeds according to the instructions left in the will. Intestacy proceeds according to state law.

Inheritance

An inheritance is any gift of money or other property from a probate estate and may be made through either intestate or testate probate proceedings. For instance, if Sophia creates a will before she dies, the terms of her will determine who receives an inheritance out of her probate estate. However, if Sophia never created a will, state law kicks in to determine who will receive an inheritance out of her probate estate. Generally, state intestacy laws provide inheritances to the surviving spouse, children, parents and siblings of the deceased.

Creating a Will

A will can be fairly simple or extremely complicated, depending on how much property you own and how you want to pass on inheritances after you die. In order for a will to be legally valid and enforceable, the person creating the will must follow certain legal requirements. It is common, for example, for state laws to require the person creating a will to sign it in the presence of two uninterested witnesses, meaning two people who do not stand to inherit under the will. The witnesses must also sign the will. To create a will for yourself, you need to research and follow the requirements established by the laws of your state.

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What Assets Need to Be Listed for Probate?

References

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Florida Will Preparation

A will is a written document that must be signed by the will maker, called the testator. In Florida, witnesses must also sign the will. The will instructs the probate court how to disperse the deceased person's property. Under Florida law, there are specific requirements that must be met when a will is being prepared so that it is valid after death. If these requirements are not met, the will may be found to be invalid -- and Florida law will instead determine who receives the property.

Death Without Wills & the Rights of Survivorship for a Property

While a will is one tool used in estate planning, there are other options available to ensure that your property goes to the appropriate beneficiary after your death. One of those alternatives is making your property subject to a right of survivorship. The benefit of the right of survivorship versus using a will is that the beneficiary obtains the property faster. Property and probate law operate under state law, so consider consulting with an attorney licensed to practice in your state if you want to create a right of survivorship or if you wish to determine if a right of survivorship exists on a piece of property.

The Inheritance Hierarchy Without a Will in New York State

A person who dies without leaving a will is said to have died “intestate.” New York courts distribute intestate property according to a statutory scheme of succession and these laws apply only to property located in the state of New York. Laws of other states may apply to real property located outside of New York, even if the decedent had been a legal resident of the state. The intent of New York's intestate succession law is to distribute the estate in the manner in which the decedent likely would have had she left a will; the statutory scheme distributes the decedent's property to the closest surviving relatives first.

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