A will is a legal document in which the drafter outlines what to do with his property after his death. An inheritance, on the other hand, is a gift of money or property from a deceased person after his death. If the deceased person had a will, the will provides instructions as to the persons who should receive an inheritance from the decedent. If the deceased did not have a will, state law will determine who receives an inheritance from the deceased person.
When a person dies, somebody must inventory and dispose of the deceased person's belongings. The legal process in which that occurs is called probate. Probate is part of a state court proceeding watched over by a local judge, called the probate judge. The term "probate estate" refers to the total collection of the deceased person's money, real estate and other belongings. The probate judge approves all decisions regarding the distribution of the probate estate. To help with that effort, the judge will appoint an individual to serve as the estate administrator, sometimes called the personal representative, who is typically a friend or family member of the deceased.
A probate can be either testate or intestate, depending on whether the decedent created a legal will before he died. Testacy refers to a person who died with a valid will, while intestacy refers to a person who died without a will. Probate testacy proceeds according to the instructions left in the will. Intestacy proceeds according to state law.
An inheritance is any gift of money or other property from a probate estate and may be made through either intestate or testate probate proceedings. For instance, if Sophia creates a will before she dies, the terms of her will determine who receives an inheritance out of her probate estate. However, if Sophia never created a will, state law kicks in to determine who will receive an inheritance out of her probate estate. Generally, state intestacy laws provide inheritances to the surviving spouse, children, parents and siblings of the deceased.
Creating a Will
A will can be fairly simple or extremely complicated, depending on how much property you own and how you want to pass on inheritances after you die. In order for a will to be legally valid and enforceable, the person creating the will must follow certain legal requirements. It is common, for example, for state laws to require the person creating a will to sign it in the presence of two uninterested witnesses, meaning two people who do not stand to inherit under the will. The witnesses must also sign the will. To create a will for yourself, you need to research and follow the requirements established by the laws of your state.
The Constitution Guru has worked as a writer and editor for "BYU Law Review" and "BYU Journal of Public Law." He is an experienced attorney with a law degree and a B.A. degree in history with an emphasis on U.S. Constitutional history, both earned at Brigham Young University.