Determining who inherits the assets of a decedent’s estate is usually simple if the estate has a valid will. If the estate is intestate, meaning it does not have a valid will, the laws of intestacy determine who inherits what. Even if an estate does not have a will, the surviving spouse and the children of the decedent generally have rights to inherit.
Inheritance rights of the surviving spouse
A surviving spouse has a role in the disposition of the estate whether there is a valid will or not. If the estate is will-less, the surviving spouse is entitled to a share of the estate as dictated by the intestacy laws of the decedent’s state of residence.
When there is a valid will, the surviving spouse has a choice of two options:
Take any inheritance stated under the will.
Usually the surviving spouse chooses to inherit whatever the will provides for him or her. Most spouses plan their estates together and execute their wills at the same time so their plans typically mirror each other’s. These sorts of wills are known as reciprocal, where each will gives nearly everything to the other and only after the second death does the property pass out into the wider family.
Take an inheritance against the will.
The surviving spouse has the right to take an amount allowed by statute rather than the amount left to that spouse under the will. Generally, the spouse’s statutory share isn’t as generous as the share he or she would receive if the decedent died without a will.
Every state has a spousal statutory share. However, any prenuptial or postnuptial agreement that the surviving spouse signed that specified the amount he or she would inherit upon the decedent’s death governs and waives the statutory share.
The surviving spouse can disclaim, or refuse by a legal document, any part of either of the following:
What the decedent left him or her under the will
The spousal portion of the estate determined by the intestate statute
Most states have a provision for a very minimal surviving spouse’s allowance. This allowance is intended to help survivors through the estate administration period. If the decedent’s spouse is also dead, minor children may receive an even smaller amount.
Inheritance rights of the decedent’s children and other descendants
Some individuals not included in the will still have the right to inherit. These pretermitted heirs, are usually children or issue (descendents) of a deceased child. They can generally take the share they would have received under intestacy, unless either of the following applies:
If the decedent provided for them during his or her lifetime
If it’s shown that the omission from the will was intentional
The policy for pretermitted heirs prevents unintentional disinheritance.
Intentional omissions are generally obvious. Most competently prepared wills have a provision stating whether the testator intended to provide for children born after the will was made. Similarly, most wills have a provision for whether the testator intended to provide for any children or other issue not mentioned in the will.
Devisees and legatees: Others that the decedent may name as inheritors
The decedent may name anyone to inherit under his or her will. Additional players in the administration of an estate are possible:
Specific devisee: A person or entity named to receive specific real property (real estate) under a will.
Residuary devisee: A person or entity named to receive all the real property not specifically devised (left by will).
Specific legatee: A person or entity named to receive a legacy (personalty, or personal property disposed of by will).
Residuary legatee: A person or entity named to receive all the personalty not specifically disposed of under a will.
Heirs-at-law: People who inherit under state statutes
Heirs-at-law are those persons who inherit a person’s estate under state statutes of descent and distribution if the decedent died without a will. Statutes regarding the division of an estate between these heirs vary from state to state.
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Source:http://www.dummies.com/how-to/content/who-can-inherit-from-an-estate.html
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