Legal Rights of the Family After a Death

By Regan Rondinelli-Haberek

When a loved one dies, settling his estate can seem like a daunting task. Those left behind may not know what rights they have as a beneficiary or heir of an estate. The legal rights of family members depend largely on whether the decedent had an estate plan in place. Most states have a probate court where a beneficiary or heir can enforce his legal rights.

Rights Under a Will or Trust

A decedent may leave instructions for how his estate should be distributed in a will or a trust document. In this case, the rights of family members will be dictated by the terms of the will or trust. A member of the family will likely be named in the will as the personal representative of the estate or as the trustee of a trust. A trustee can begin trust administration upon the decedent’s death, without court supervision. However, if an individual left a will, it will most likely have to be submitted for probate. Probate is the process by which a court authenticates the will and bestows authority on the personal representative to administer the estate. The will has no legal effect until it has been filed and accepted for probate. Part of the probate process is the notification of interested parties. If you are a beneficiary of the will or an heir of the decedent, you must be notified that the will is being filed for probate. Once the will has been accepted for probate, the personal representative, often called an executor, can begin administering the estate.

The Elective Share

Most states have laws preventing a decedent from disinheriting his spouse. Even if a decedent intentionally leaves his spouse out of his will, she is, nonetheless, entitled to a certain amount of his estate, which is known as the “elective share.” Each state has laws governing the amount of the elective share and how a surviving spouse can exercise this right. For instance, in Tennessee, a surviving spouse must make her election within nine months of the date of death, and the amount to which she is entitled depends on the length of the marriage. In North Carolina, the amount of the elective share depends on whether or not the decedent left surviving children.

Protect your loved ones. Start My Estate Plan

Intestacy Laws

An individual may die leaving no instructions for the management of his estate, which is called dying “intestate”. In this case, states have laws directing distribution of the estate. For instance, in New York, the first $50,000 and half of the remaining estate go to the surviving spouse, with the other half of the remaining estate going to the decedent's children. If there is no surviving spouse, the whole estate goes to the decedent's surviving children. If there is no spouse and no children, the estate goes to the decedent’s parents, and so on and so forth. While in Florida, if the decedent and surviving spouse share all of the decedent’s children, the spouse receives the entire estate.

Fiduciary Duty

An executor, trustee and estate administrator each have what is known as a fiduciary duty to the beneficiaries or heirs of the estate. This means she has a legal duty to carry out her position in an honest and prudent manner. If a beneficiary feels that one of these individuals has violated this fiduciary duty, she has recourse in court. If an executor or trustee refuses to act in accordance with the terms of the will or trust, or is causing an undue delay, a beneficiary can file a petition with the probate court asking the court to compel the executor or trustee to comply with the terms of the will or trust. However, sometimes an executor, trustee or estate administrator mishandles the estate’s finances. In this case, a beneficiary or heir can file a petition with the probate court requesting an estate accounting detailing the flow of money in and out of the estate. A finding by the court of mismanagement or even theft can result in the removal of the executor, trustee or administrator.

Real Property

A survivor’s legal right to real property depends largely on how the property is titled. This information can be found on the deed to the property. If the deed has been recorded, you can obtain a copy from your local recording agency’s office, often for a small fee. Generally speaking, real property, if owned solely by the decedent, is subject to probate; if there is no will, it becomes part of the intestate estate. However, there are instances in which real property passes outside of probate or intestacy. If real property is owned jointly by husband and wife, often referred to in a deed as “tenants by the entirety”, upon one spouse’s death the property will automatically pass to the surviving spouse. Unmarried individuals can also own property with this right of survivorship. When one “tenant” dies, the property will pass to the survivor. Additionally, a common arrangement between elderly parents and adult children is to deed the property to the children, with the parents retaining “life use”. This means that the parent has the right to live in the residence during his lifetime. Upon his death, any interest he had in the property passes to the children named in the deed.

Protect your loved ones. Start My Estate Plan
Difference Between Heir & Legatee

References

Related articles

How to File a Will & Family Trust in California

When a loved one dies, family and friends can be left with the complicated and sometimes confusing job of deciding how to distribute the property and debts of the deceased. If the family member left substantial assets, or if assets are held in a trust, it might be necessary to settle the estate in probate court. Probate courts deal with transferring property and money to a decedent's heirs and beneficiaries in a fair and orderly manner. They can also decide whether or not a will is valid.

Legal Rights for a Widow With No Will in NC

Having a will in place helps clarify how a deceased person wanted his property distributed to his loved ones. If no will is present at death, the probate court must step in and distribute the property under a rigid set of state law rules known as intestate succession. As a surviving spouse in North Carolina, the extent of your legal right to your husband's property depends on the nature of his assets and the existence of other living relatives.

How to Determine Who Is an Heir

Although the terms "heir" and "beneficiary" are often used as though they mean the same thing, they do not. Beneficiaries are parties who inherit according to a will, while heirs inherit based on the rules of descent and distribution. Thus, you cannot determine heirs by looking to a last will and testament because parties named in a will are considered beneficiaries.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

How to Remove an Executor or Trustee for California Probate

If an executor or trustee fails to perform her various duties, California law allows an interested party to petition ...

The Inheritance Statute in Washington, DC

Washington, D.C. has enacted the Uniform Probate Code, a law drafted by the National Conference of Commissioners on ...

The Widow's Legal Rights in South Carolina

South Carolina law provides a surviving spouse with the right to inherit from her deceased spouse's estate. An estate ...

Inheriting Property in a Will in Missouri

A Missouri resident can write a will leaving his property -- real estate or personal property -- to named beneficiaries ...

Browse by category
Ready to Begin? GET STARTED