Your Family: Their Rights to Your Estate


I'm afraid that my large estate will be tied up in probate for a long time after my death. Will my family be entitled to any allowances to provide for their living expenses before my estate is settled?

Yes. Your family will be entitled to a family allowance, homestead exemption, and personal property exemption. These allowances are mutually exclusive - your family can receive all three - and they are in addition to gifts in the will, the elective share, or an intestate share.

Type of Allowance Purpose Application

Family Allowance: Provides the spouse and minor children with a monetary allowance for living expenses during the estate's administration. Amount varies by state law.

Homestead Allowance: Protects the family home from any claims by the estate's creditors. Some states provide that the spouse and children can live in the home for up to a specific period of time, while others will grant a sum of money to cover housing expenses.

Personal Property Exemption: Protects tangible personal property items for the family's use. Usually applies to items such as furniture, household items, jewelry, and vehicles.

My husband left me only a very small share of his substantial estate in his will. Do I have any recourse?

Yes. You have the right to renounce, or reject, the will and file for an "elective share" (provided by statute) of your husband's estate, which is usually one-half or one-third of his estate. This right protects surviving spouses from being disinherited or from being left with minimal gifts. For purposes of determining what property makes up your husband's estate, most states even include any nonprobate transfers in which he retained an ownership interest when he died (e.g., joint bank accounts or joint tenancies). Including nonprobate property prevents a spouse from transferring all of his property into nonprobate transfers, thereby effectively defeating the elective share. If you decide to take your elective share, you must file for it within a certain amount of time (ranging from 4 to 9 months) after your husband's death. To make up your share, all the gifts in the will are proportionately reduced, so that each beneficiary contributes to your share of the estate.

The amount to which you are entitled varies by state law, so check your state's statutes to find out what the elective share amounts to. Some states condition the amount you receive on the length of your marriage.

I live in a "community property" state. What does that mean with respect to the property that I own?

Community property is defined as all property acquired by you and your spouse while you are married. Property that each of you owned before your marriage and anything that was given to either of you (e.g., by will) during your marriage is not community property. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. If you live in one of these states, then you own 50% of your community property, and your spouse owns the other 50%. This means that you can give away only your one-half share of the property, and your spouse can do as he pleases with respect to his share. For example, if you and your spouse bought a vacation house after you got married, the house is community property. When you die, you can only give away your one-half share in the house, and the beneficiary of that share will then own the house as a tenant in common with your spouse.

I executed a will a few years ago and now am getting married. What rights will my new spouse have in my estate if I die before changing the will?

Your spouse has several options depending on the law of your state. First and foremost, she can file for her elective share and receive up to one-third or one-half of your estate. If your state has a "pretermitted spouse" statute, she may be entitled to an intestate share of your estate, which in most states is one-half if you are survived by any descendants. Additionally, your spouse will receive the allowances allowed by law - family, homestead, and exempt personal property.

TIP: The event of a remarriage is a good time to revise your will, especially if you want your spouse to receive more than what she is entitled to under the law.

How will a prenuptial agreement affect my spouse's rights to my estate?

Depending on the terms of the agreement, it can limit, and in some cases even waive, your spouse's right to share in your estate. For the agreement to be valid, it must have been entered into voluntarily and your spouse must have understood the meaning of the agreement (e.g., that she was forfeiting any rights to your estate).

My partner and I never married. How can I make sure that he will receive my property when I die?

To protect your partner, you must execute a carefully thought-out estate plan; otherwise, he will be left with nothing. Some ideas are to make lifetime gifts to him, set up joint accounts with him; name him as beneficiary of any trust, life insurance policy, or otherwise; and provide for him in your will. If you fail to take these important steps, your partner will not receive any of your property - not even under your state's intestate succession laws. Nor will he be entitled to an elective share or any of the family allowances.

TIP: Nonprobate transfers are best in this instance because the transfer on death is automatic. There will be no delay in the event your will is contested or your estate is tied up in probate.

I never changed my will after my divorce and it names my ex-spouse as a beneficiary. Will she have any rights to my property when I die?

No. Any gifts or appointments that are in favor of your ex-spouse are invalid. The property that was left to your ex-spouse will pass as if your spouse died before you: it will fall into your residuary clause or pass under intestate succession.

TIP: If you go through a divorce, then you should protect your property by writing a codicil to your will with respect to the property that was devised to your ex-spouse. Your ex-spouse will not receive the property if you fail to do this, but you might want to control who the beneficiary will be.

What about any property that I left to my ex-spouse's children from her previous marriage? Are those gifts invalid too?

No. The divorce revokes only the gifts to your ex-spouse. Any gifts to her family members are still valid. If you do not want her children to share in your estate, then you need to adjust your will accordingly.

What if my ex-spouse and I remarried a few years before my death? Is the gift still invalid?

No. In many states, remarriage will revalidate those portions of the will that were revoked by the divorce. Your spouse will still receive the property that you originally devised to her.

I gave birth to a child after executing my will. Will he be left with nothing?

No. Most states allow a child who is born or adopted after a will is executed to receive a share in the estate, usually equal to what he would have received under intestacy. Some states do limit this right if the will indicates a clear intent to disinherit the testator's children, or if the child is provided for by some nonprobate transfer.

Is there a limit on how much I can leave to my minor children?

No. You can leave as much as you like to your children. However, if you choose to leave gifts of over a certain amount, which varies by state law but is typically $2,500, then you need to designate a responsible adult (called a "property guardian") who can manage that property for your child until he reaches the age of majority, and at that point the child gains full control over the property.

TIP: Keep in mind that in some states the age of majority is 18, and at that age, many kids are not yet responsible with large sums of money. Consider leaving the property to your child in a trust or custodial account instead, as you can better control, and even delay, his receipt of it.

I don't want to leave anything to my oldest child. Can I put something in the will that states that she is disinherited?

A disinheritance clause in a will is called a "negative bequest clause," and is ineffective in some states. The best way to make sure that your daughter does not receive anything is to completely dispose of all your belongings. If you die without having disposed of all your belongings, she will have rights to them under intestate distribution.

I had a very close relationship with my mother, and although she provided for me in her will, she left me only a small share of her substantial estate. She left the remainder of her estate to a friend she hasn't seen in 10 years. What are my rights?

Unfortunately, you cannot claim a larger share in your mother's estate than what she gave you in her will, unless you can prove that she was mentally incompetent or that there was some type of fraud by her friend. Given that she hasn't seen her in 10 years, that is unlikely. The mere fact that the disposition seems unfair is not enough motivation for a court to risk altering your mother's wishes. Thus, you are stuck with what she left to you, and nothing more.

I inherited a generous portion of my friend's estate, but I don't want to accept it because I recently had a judgment entered against me and fear that I may lose it to my creditor. Can I reject the gift?

Yes. You can reject all or part of a gift if you file a valid disclaimer with the court within 9 months after your friend's death. The disclaimer must be in a writing signed by you and must describe the property that you are rejecting. The gift that you reject will then pass under your friend's residuary clause or to her intestate heirs (if she did not have a residuary clause).

Before my father's death, he promised me that he would leave me $20,000 in his will. When the will was probated, the gift that he promised me was not included and the executor is refusing to pay it. Can I sue the estate for the $20,000?

No. The mere fact that your father promised to leave you something in his will is not sufficient grounds for suing the estate. To win, you would have to prove not only that there was a contract between you and your father that he would leave the gift (and you would have to show more than the fact that he orally promised the gift), but also that the gift was in exchange for some type of service that you provided him, such as taking care of him during his final illness.

My grandfather's will devises his artwork to me, but when the executor was inventorying his estate, he learned that my grandfather sold the artwork to an art gallery before he died. Can I get it back from the gallery?

No. The bequest to you is ineffective because your grandfather no longer owned the artwork when he died.

I was named a beneficiary in my boyfriend's will, but the court found the will to be invalid because it was signed by only one witness, so now I get nothing. Can I sue the attorney who prepared the will?

It depends on the law of your state, but most states will allow you to sue the attorney for his negligence. A few states allow only the client to sue the attorney, which leaves you with no recourse because the client is now dead.

My brother left his entire estate to a local charity. Can he do that?

Yes, as long as your state doesn't place any monetary limit on gifts to charities.

Death of a Beneficiary - What Happens to the Gift?

In my will, I devised my car to my granddaughter, Sheila, but she died last month. What happens to the car?

Generally, a gift to a beneficiary is invalid if the beneficiary dies before you. The property will pass under your residuary clause or, if none, under intestacy. However, every state has what is called an "anti-lapse statute," which is designed to save the gift of a beneficiary who dies before you for that beneficiary's descendants. For the statute to apply, the beneficiary must have been related to you in a specified manner (grandchildren are normally included; friends and remote relatives are not) and must have left surviving descendants. Since Sheila is your granddaughter, she will probably fall within the scope of your state's statute, and if she left any surviving descendants (e.g., children or grandchildren), then the gift will pass to them.

Sidebar: Now would be a good time to change your will, especially if you are not fond of the person who will receive the property under the anti-lapse statute.

In my will, I left a gift to "my employees for all their hard work over the years." If one of my employees dies before me, what happens to her share?

Assuming the anti-lapse statute does not apply, her share will pass to the remaining employees. A gift to "my employees," or any other group of people that is not individually named, is called a "class gift." If a member of that particular class dies, then her share passes to the remaining class members (unless the anti-lapse statute applies).

Understand that these anti-lapse rules apply only if the beneficiary dies before you. If you die first, then the beneficiary obviously receives her gift, and when she dies it will pass to her heirs or beneficiaries.

How is this different from my having left the gift to "Mark, Caroline, and Dan, my trusted employees, for all their hard work over the years"?

In this instance, the gift is to three individually-named persons so it is not a class gift. If one of them dies before you, that share will not pass to the other two persons. Instead, it will either pass to her descendants under the anti-lapse statute (if it applies) or it will pass through your estate under your residuary clause or under intestacy.

Summary: Understanding the Anti-Lapse Statute

If a beneficiary dies before you, change your will to designate a new beneficiary to receive the property. If you do not change your will, then the gift will either fail, or if there is an anti-lapse statute in effect, will be saved for the descendants of the beneficiary who died. If the beneficiary who died was related to you within the degree required by your state's law and is survived by descendants, the property will pass to those descendants. If the beneficiary who died is not related to as specified by your state's law, or if she did not leave surviving descendants, then the gift fails - it will then pass under your residuary clause (if there is one) or under intestacy.

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