You don't have to squabble with family members about how to divide assets after a death, unless you want to. If the deceased left a valid will, the property passes according to its terms. If not, the probate property is divided among close relatives of the deceased as set out in the state's intestacy statutes.
Will Provides Instructions
A will is a legal document containing written instructions for how to divide the assets of the person making the will, termed the testator. As long as the will was prepared correctly under the laws of the state where the testator resided, it is valid and will be enforced by the probate court. A person making a will is not obligated to leave assets to family members. She can leave her assets to anyone by describing specific bequests in a will. Often a will names an executor, the person who is in charge of navigating the document through the court-supervised probate process. If not, the court appoints someone to do this job.
If the deceased did not make a will or left a will that is declared invalid, her property passes to close family members under her state's intestacy laws. State laws differ slightly, but all set forth a specific order of inheritance. In most states, a surviving spouse gets the largest slice of the pie, with the deceased's children next in line to inherit. The deceased's parents and siblings follow in order of priority. The calculations as to who gets how much depend on the language of the law.
Probate Estate Doesn't Include Everything
Wills and intestate succession laws divvy up property that goes into probate, but not all of the deceased's assets are included. Sometimes assets are transferred directly to a named beneficiary when the owner dies, bypassing probate. One familiar example is life insurance. If the deceased named a beneficiary in her life insurance policy, the proceeds pass directly to that person. Likewise, beneficiaries can be named for many other assets, like Keogh and IRA retirement accounts. Funds in any account termed "payable-on-death" pass automatically to the person named, as do stocks and other securities held in a "transfer-on-death" account.
Read More: Do You Have to Divide an Estate to Include the Children of a Deceased Brother?
Real Property and Vehicles
If the deceased owned title to any property, the title document can dictate who takes it. If two or more people are on the title, and it specifies it is "with right of survivorship," the deceased's share will pass in equal parts to the surviving co-owners. Likewise, if the deceased held real estate or vehicles with a "transfer-on-death" deed, the property transfers automatically to the person named, rather than passing through probate.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.