Inheritance issues are governed by the statutory and case law of individual states, and each jurisdiction has its own rules. As the legal systems of every state (with the exception of Louisiana) are based upon English common law, however, certain general rules exist that apply in virtually all jurisdictions.
When a person dies without a will, he is said to die "intestate." Under these circumstances, a state's laws of intestate succession kick in. The laws govern who inherits what and in what proportion in the event somebody dies without leaving a will. The spouse and children of the decedent — the person who died — usually get everything. If the decedent has no children, the spouse may have to share the estate with the decedent's parents or siblings. In general, intestate succession distributes the decedent's estate to the closest relatives and only moves out to collaterals such as aunts, uncles and cousins where no immediate family remain.
A will, or "last will and testament," is a document that sets forth the decedent's wishes as to the distribution of his estate. In order to be valid, a will must comply with certain requirements of state law. In general, it must be signed by the testator (who is now the decedent) in the presence of at least two competent witnesses. The witnesses cannot be entitled to share in the estate under the will. The will's validity also depends upon whether the testator was mentally competent at the time of the will execution.
Debts of the Estate
Although the decedent may be dead, his debts live on. Credit card bills, medical bills, past due alimony and child support arrears can all constitute claims against the estate and leave the decedent's heirs with nothing. This is true whether the decedent died intestate or left a will. As the executor (or administrator, in intestate cases) of the estate will not necessarily know what valid claims are out there, there is generally a process for presenting claims against the estate. This involves publishing a notice in the newspaper and waiting to hear from creditors.
Rights of Surviving Spouses
Although wills generally govern the distribution of the decedent's estate, state law usually restricts the extent to which a testator can cut a spouse out of a share. These provisions afford the surviving spouse the right to dissent from, or step around, the will. The right to dissent is not always automatic; sometimes, it involves a calculation based upon property passing to the spouse outside the will, such as survivorship property and life insurance proceeds, and any property left to the spouse in the will. If the spouse does have the right of dissent, she will probably be entitled to what she would have gotten had the decedent died intestate. Different rules apply where the decedent was married before and had children. The surviving spouse's share is also influenced by the presence of children of the marriage, parents, siblings and grandparents.
A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.