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Passing the Estate to Nonfamily Members: Expert Witness

In some situations, a person may wish to pass his or her property to a business partner, friend, church member or other individual outside of his or her own family. Understanding what heirs are and any statutory right to inherit is important. An expert witness can explain the steps that are legally necessary to effectuate this transaction and whether they were or were not present in a specific situation.

Heirs at Law

An heir is a person who may have a right to inherit an estate if a person dies without a will. Heirship dates back hundreds of years. Often the eldest male child was the rightful heir of a person’s property. However, laws have changed over time, markedly by allowing women to have the same property rights as their male counterparts. However, some states still recognize dower and curtesy rights.

Last Will and Testament

A person who is at least 18 years old and is of sound mind can usually make a document specifying how he or she wants his or her property to be distributed at death. This document must meet specific legal requirements and must usually be witnessed by two or three individuals. These witnesses should generally not be parties who stand to inherit anything under the will. A person can generally list who he or she wants to inherit property in this last will and testament and his or her wishes are honored. However, there may be exceptions based on state law.

Laws of Intestacy

If a person dies without making a will or if the will is found to be invalid, the laws of intestacy apply. These are the state default rules regarding the transfer of property. Every state has its own unique set of rules that apply. These rules list the order of priority in which property of the decedent is distributed. Some states pass everything first to the spouse while others may have the surviving spouse and any children split the proceeds equally or by some other equation. After the spouse and children, other priorities may include the parents, siblings, grandparents, aunts and uncles. If there are surviving people in one group, this usually stops the line of transfer. For example, if the laws of intestacy provide first for a spouse, then the children, then the parents and then siblings and a person was unmarried with no children, his or her parents might inherit everything while his sister inherits nothing.

Right to Inherit

Most relatives do not have an actual right to inherit even though they may stand to inherit if there is no will. By simply including a person’s wishes in a will, distant relatives can usually be easily handled. The will allows the person to give his or her property to whomever he or she chooses, subject to certain limitations. Simply by not mentioning a relative in a will, a person can effectively disinherit him or her. Two general exceptions to this are the decedent’s surviving spouse and children.

Surviving Spouse

All states have laws that prevent a spouse from completely disinheriting his or her spouse. This is a public policy that seeks to avoid spousal impoverishment. Some states give spouses an elective share, which is a specified portion of the decedent’s estate. The spouse can take whatever was left for him or her in the will or the elective share provided by law. Some states recognize dower, which is the set portion of the deceased spouse’s estate that a wife is entitled to, and curtesy, the portion that a husband is entitled to.

Adult Children

Some states give adult children the right to inherit some of the decedent’s property. Some states require a decedent to specifically state that he or she leaves nothing to the child.

Omitted Children

Many states have laws pertaining to accidentally omitted children. If a parent makes a will and then a child is later born, the laws may assume that the child was inadvertently left out of the will and may provide some portion of an inheritance to him or her. Generally, the after-born or adopted child may receive the inheritance based on the laws of intestacy if he or she was omitted from the will unless it can be determined from the will that the child was intentionally omitted.

Minor Children

Some states provide protections for minor children. For example, some states protect minor children from being ousted from their family home.

An expert witness can explain the rules for the state where the property is located and how the estate should be distributed.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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