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.
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.
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.
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.