One of the most contentious aspects of legal practice is inheritance law. This mainly arises from the fact that the deceased is no longer around to offer precise guidelines on what he or she would like to be done with their property they left behind. As a result, various laws have been introduced in an effort to try and lessen the conflict that may arise between parties seeking to inherit assets. The most important of these is the will which is prepared by the deceased, outlining the inheritance guidelines. With such a document, some of the potential pitfalls associated with inheritance may be avoided. The inheritance rights of the children of the deceased are among the most misunderstood elements. However, we can help shed light on the subject so that there is more clarity.
The starting point for determining the inheritance rights of the child depends on whether the deceased died testate or intestate.
- A testate decedent is one who died with a valid will
- An intestate decedent is one who died without a valid will.
These are legal terms that can be subjected to scrutiny especially if the validity of the will is challenged. In that regard, an estate planning attorney Scottsdale AZ can count on provides services that can help ascertain the validity of a will. The factors to consider in such a case include whether the deceased was of a sound mind when making the will and whether it was made without any form of coercion.
Inheritance Rights Under Testacy
The desire of the deceased in the form of their will is often binding except under certain circumstances.
- The law states that the children of a deceased person do not have a legal right of inheritance, unlike the surviving spouse. This means that while a surviving spouse cannot be disinherited, a child can.
- However, the will can be challenged if it is possible that the child was disinherited accidentally. For instance, if a child was born after the will was made, this can be considered an accidental disinheritance, and the child is entitled to an inheritance.
- Therefore, the deceased has to indicate in the will that the disinheritance was intentional rather than accidental.
Protection Against Arbitrary Disinheritance
Some states have laws that protect against arbitrary disinheritance. For instance, in Florida, the deceased cannot leave his or her residence to any other party rather than a surviving spouse or a minor child. This means that the latter is entitled to a share of the estate. While they do not have a legal right to inheritance, children can also make an application for a provision even in a testate situation. The courts in this scenario, will be involved and will consider factors such as:
- The child’s age
- Financial status of the child
- Age and financial status of the other children
- The financial means of the parent
- Whether the child was provided for in the lifetime of the parent
- The relationship between the parent and child
- Whether the child has a need that was previously met or satisfied by the parent
However, there are statutory limitations on when children may make applications for provisions from the estate of the deceased. This means that they should seek legal advice as soon as possible.
Inheritance Under Intestacy
If the deceased did not leave a will, the common law practice is sharing the estate between the surviving spouse and the children. If there was only one child, the surviving spouse is often given one-half of the estate with the child taking over the rest. If there were more than one children, the spouse gets one-third of the estate while the children share the rest in equal measure. The best thing to do with regards to children and inheritance is to seek legal advice from an estate planning lawyer.[logo] Thanks to our friends and contributors from Hildebrand Law for their insight into estate planning practice.