How Do Inheritances Work?

by David Carnes
Most inheritances are administered by specialized probate courts.

Most inheritances are administered by specialized probate courts.

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If you are named as an heir in someone's will, your inheritance may or may not have to undergo judicial process before the inheritance is distributed to you, depending on financial arrangements made by the deceased person, known as the decedent, before he died. In most cases, however, you will have to wait until probate proceedings are completed to receive your inheritance.

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The Probate Estate

As soon as someone dies, his property becomes a probate estate under the jurisdiction of the probate court sitting in the county where the decedent lived when he died. The executor appointed by the probate court -- normally the person named in the will -- is responsible for the day-to-day administration of the estate, although he must ultimately answer to the probate court. Inheritances cannot be distributed until the probate process is complete, except that the probate court may authorize the executor to distribute living allowances to the decedent's dependents while the probate process is pending.

Probate Process

Anyone can initiate the probate process by delivering a copy of the will and the decedent's death certificate to the clerk of the probate court. The court then sets an initial hearing date. At the initial hearing, the court will appoint the executor and present him with legal documents that establish his right to manage the decedent's property. The executor uses these documents to perform legal acts such as paying estate creditors from the decedent's bank account and signing income tax returns on behalf of the decedent. Estate property is distributed to heirs when all estate creditors are paid and any legal challenges to the estate are resolved. Heirs are entitled to share only whatever assets remain after estate creditors are paid. This means that the probate court may rule that heirs will receive less than the amounts specified in the will.

Litigation

Interested parties may challenge the decedent's will at a probate hearing. Someone may claim, for example, that the decedent's will was not properly signed or witnessed and is, therefore, invalid. Alternatively, someone may claim that the decedent owed him money and that the debt should be paid from the estate assets. Parties with valid standing who challenge the will are entitled to testify and call witnesses.

Intestate Succession

If the will is declared invalid, distribution of the estate will proceed under state intestate succession laws. These laws provide for the distribution of the estate to relatives of the decedent, with closer relatives receiving greater shares of the estate.

Alternatives to Probate

If the decedent established a living trust, trust assets will not go through probate -- the trustee will continue to distribute them according to the terms of the trust deed, just as he did before the decedent died. Assets held under some forms of joint ownership revert to the other joint owners when one joint owner dies, rendering them ineligible for probate.