Estate Planning For Dummies
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Determining who inherits the assets of a decedent’s estate is usually simple if the estate has a valid will, because the will sets out who the assets go to. However, wills can be fuzzy if they're not well drafted, and sometimes beneficiaries can be hard to track down. 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

If the decedent was married at the time of his or her death, his or her surviving spouse has a role in the disposition of the estate whether there is a valid will or not. When there is a valid will, the surviving spouse has a choice:

  • He or she can choose to take any inheritance stated under the will.
  • He or she can elect to take against the will — that is, to receive the share that he or she is entitled to by statute, known as the statutory share, rather than the amount he or she stands to inherit under the will. Generally, the spouse's statutory share isn't as generous as the spouse's intestate share (the share he or she would receive if the decedent died without a will), and they are definitely two different animals.
In certain instances, such as when the surviving spouse's own estate is taxable without any additions from the decedent's estate, it may not be in the surviving spouse's best interest for estate tax purposes to accept any inheritance from the decedent. In this case, the surviving spouse should disclaim, or refuse by a legal document, any part of either what the decedent left him or her under the will or the spousal portion of the estate determined by the intestate statute.

Inheriting under the will

In the most common scenario, the surviving spouse chooses to inherit whatever the will provides for him or her in accordance with the decedent's wishes. Most spouses plan their estates together and execute their wills at the same time. They typically have a common purpose in mind: to take care of the survivor during his of her lifetime (along with any children if they are minors). 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.

Taking against the will

Each spouse has the right to leave his or her property by will to whomever he or she wants. To offset that right, the surviving spouse has the right to take an amount allowed by statute rather than the amount left to that spouse under the will. For a variety of reasons (such as a second marriage where the decedent wants to favor children from a first marriage in his or her will, or if the spouses aren't amicable before the decedent's death), the surviving spouse may get less under the will than he or she would receive by taking his or her statutory share. That's when the surviving spouse may decide to take against the will.

Don't forget, this spousal statutory is not the same beast as the intestate statutory share. Though every state has a spousal statutory share, any prenuptial agreement (an agreement signed before marriage — think movie stars, billionaires, and second marriages) or postnuptial agreement (an agreement signed after the marriage) that the surviving spouse signed that set out or limited the amount he or she would inherit upon the decedent's death, that agreement will govern (and it no doubt waives the statutory share).

Surviving spouse's allowance and lack of a will

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.

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.

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 (descendants) 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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