Few wills make reference to every single item of property the decedent owns, and he might not revise and update his will every time he acquires or purchases a new asset. Inevitably, a decedent can omit something from his will, leaving his heirs to squabble over who receives it when he dies. One purpose of probate is to resolve such disputes.
Terms of the Will
The law leaves little room for bickering over property the decedent specifically mentions in his will. Even if it’s as insignificant as his childhood teddy bear, if he states in his will that he wants the bear to go to his daughter, courts will invariably honor his wishes. The same holds true with significant assets. Heirs can petition the court to overrule the terms of the will if they're unhappy with bequests, typically by filing a will contest. However, absent some strong evidence that the decedent was not of sound mind or that someone coerced him into writing his will the way he did, probate courts almost always abide by his last wishes.
Most wills also vest a significant amount of power in the decedent’s chosen executor. She often has the power to sell assets to raise cash to pay the decedent’s taxes and debts, although some states require that she gain permission from the court first. If you believe the executor is being unfair in this process, you have the right to petition the court and attempt to have her removed. However, these lawsuits can be difficult because you generally need specific, provable grounds. For example, the decedent might have chosen his sister to probate his will and she might have a favorite niece or nephew. As a result, she might be more reluctant to sell property bequeathed to that individual than something assigned to you. This generally isn't enough to have the executor removed unless she's committed some other transgression, such as mishandling the estate's funds. The executor usually must submit several reports to the court during the probate process detailing the actions she's taken on behalf of the estate. If you take these reports to an attorney for review, the lawyer can usually tell you if you have grounds for unfair fiduciary conduct.
When a decedent does not leave a will, this doesn’t mean the court maintains less control over his property. The opposite is true. All states’ laws include rules for intestate succession, which dictate that his property must go to his most immediate heirs. If you’re a distant relative, you usually have no right to any of the decedent’s property unless everyone more closely related to him predeceased him. There is no way to overturn intestate succession. Generally, if the decedent’s spouse and children are alive, no one else has a legal right to fight over the decedent’s property if he did not leave a will.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
Unspecified Personal Property
Courts usually determine intestate inheritances by percentages of the value of the decedent’s overall estate. For example, if the decedent’s entire estate is worth $100,000 after the executor has paid his taxes and debts, his spouse might receive assets totaling $50,000, and his children might divide the remaining $50,000. If you are an immediate heir in line to inherit and there is some item of property that you want to count toward your percentage, you can petition the court and ask for it. If there's a dispute over that item, a judge will decide it. The same process applies if you want an item of personal property that the decedent did not specifically bequeath to you in his will, but mentioned you as a beneficiary.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.