How Is “Inheritance” Defined?
In legal terms, inheritance is the legal process through which one individual's property is passed to another named individual, set of individuals, or entity through the laws of intestate succession and distribution. Often when persons refer to receiving an inheritance, they are referring to receiving property that they acquired through the terms of a will. When a person dies without leaving a will, they are known to have died intestate.
However, the legal definition of inheritance does not include property covered by a will. Instead, inheritance only includes property that is distributed according to the state laws of intestate succession. Thus, when an individual dies without a will, or there is some property not specified in a will, inheritance laws will come into play in order to determine which of the decedent’s (deceased person) surviving family will receive that property. The property that is left behind by a person when they pass away is referred to as that person’s estate.
Typically, under the laws of intestate succession, the decedent’s surviving spouse will be entitled to the largest portion of the decedent’s estate. Next, the decedent’s children will then be entitled to the next largest portion of the decedent's estate. Finally, the decedent’s grandchildren, siblings, parents, or other family members may be entitled to a smaller portion of the estate. If the decedent does not have any family, and did not believe behind a will naming another party as beneficiary to their estate, the decedent’s property may escheat to the state.
It is important to note that every state’s laws differ in regards to intestacy. Therefore, it is important to research your state’s laws of intestacy and inheritance if you find yourself in a situation where you may be receiving an inheritance. This is especially true if you receive a letter from an attorney representing another party subject to the inheritance that is attempting to get you to waive your rights to the inheritance.
What Types of Issues Do Inheritance Lawyers Handle?
Inheritance lawyers handle a variety of different legal issues. First and foremost, an inheritance lawyer will be the representative of the individual that hires them, who may be receiving an inheritance. The first thing an inheritance lawyer will do is make a determination as to whether or not the individual that is consulting with them is rightfully due an inheritance under the laws of intestacy for that state.
Next, the attorney will determine the amount of inheritance that the individual may be receiving. In doing so, an inheritance lawyer may contact various different family members that may be entitled to the inheritance under the laws of intestacy. However, typically an inheritance lawyer will first file a claim to the inheritance in the Probate Court of their local jurisdiction.
After the probate process has begun, some courts may appoint an attorney ad litem. The attorney ad litem would then be responsible for researching and contacting all parties eligible to receive the inheritance under the law, and filing a report to the court as to which parties are making a claim for inheritance.
In many cases, the family members that may be receiving an inheritance may agree as to which family members should receive the inheritance. In such cases, an inheritance lawyer would then draft up waivers for the surviving family members that wish to waive their right to inheritance.
For example, if an individual died and left a surviving spouse, the surviving children of the decedent may wish to waive their right to their portion of the inheritance in order to leave their parent with their spouse’s full estate. Inheritance lawyers also handle drafting all necessary legal paperwork, and representing their client in front of a court of law during the probate process.
Are Inheritance Laws Complex?
As noted above, inheritance laws vary by state. Further, the laws of inheritance will also be impacted if the state is a community property estate. In community property states, a surviving spouse is entitled to one half of the marital property. Typically, a surviving spouse may elect to receive their share of the decedent’s estate under the laws of intestacy or under the community property laws of the state.
Further, there are other estate planning tools that an individual may utilize, other than drafting a will, that may impact the property that may be passed by the laws of inheritance. For example, an individual may give away property prior to their death, or may form a trust and place what would have been property of their estate in that trust for the benefit of another person. Additionally, other laws may impact inheritance laws, such as military retirement or survivor benefits, life insurance contracts, and employee retirement plans.
How Can an Inheritance Lawyer Provide Help?
If you believe that you may be subject to an inheritance, it is in your best interests to contact a well qualified and knowledgeable inheritance attorney in your area. An experienced inheritance lawyer will be able to help you determine your portion of inheritance. Further, an attorney will also be able to represent your interests in court, as necessary.