Ownership of an Heirloom Without a Will

By Heather Frances J.D.

A will allows the maker, known as the testator, to decide who will inherit his property after his death. Wills can include a detailed list of heirloom property for distribution to particular loved ones, but such lists are not effective unless they are part of a will. When someone dies without a will, heirloom property is generally distributed like other personal items -- by the state's intestacy laws.

Intestate Succession

When a person dies without a will, he is said to have died intestate -- and his state's intestate succession laws determine how his property is distributed. Typically, property is given to a surviving spouse and children, but this varies by state law. If the decedent left no spouse or children, the court can distribute the assets of his estate to his parents, siblings or other close family members as per the formula in state statute. State laws generally do not recognize emotional bonds, only legal relationships. For example, a stepchild may not be allowed to inherit under intestate succession laws, but an adopted child could.

Passing Personal Property

The decedent's estate must be probated even if he died without a will, though the exact requirements vary by state. Generally, probate procedures require the court to appoint an administrator to manage the estate, notify creditors, pay debts and distribute the remaining property to legal heirs. If the decedent left more debts than assets, his personal property, including heirlooms, may be sold to pay those debts. However, state laws can change these rules. For example, Idaho includes heirlooms in its list of property exempt from creditors when the decedent leaves a surviving spouse or children.

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