Estate Laws

In 1789, Benjamin Franklin wrote: “In this world, nothing can be said to be certain, except death and taxes." The government has an interest in both.

There are federal and state laws that cover all aspects of a deceased person's estate, the inheritance rights of their loved ones and heirs, and of course, estate taxes.

Inheritance law covers, among other things:

  • Who may inherit? Even without a valid will, state laws called intestacy laws provide some family members with the right to inherit a certain percentage of the decedent's estate.
  • The legality of estate planning documents like a will or a trust. A probate court judge will rely on state laws to determine whether a will is valid, heirs should inherit, creditors have a valid claim, and other contested issues with an estate.
  • How and when property may be transferred: A legally valid will or a trust can be used to transfer personal property, real estate, bank accounts, retirement accounts and IRAs, and other decedent assets to a beneficiary. Furthermore, the right of survivorship on a deed or the naming of a beneficiary on a life insurance policy can be used to transfer a home or life insurance benefits.
  • The process of probating or administering an estate: The role of executor or personal representative is often given to someone who is inexperienced with the probate process. State laws and the probate court provide guidance on how the process should be done. An executor or administrator may choose to hire a probate lawyer so they understand their fiduciary duty when they take on the important role of closing an estate.

In this section, you will find information on state and federal laws regarding the estate planning and administration process, including: information on living wills (healthcare directives), wills and trusts, estate administration and the probate process, and estate taxes.

Learn About Estate Planning State Laws: A Living Will

living will, also called a healthcare directive or medical directive, is a document that allows you to communicate your wishes for medical treatment should you become too ill to make or communicate decisions on your own. This document is often paired with two other documents:

  • A medical Power of Attorney, which authorizes someone to make decisions on your behalf when you cannot. This person may also be called your health care agent.
  • A HIPPA release form, which ensures your doctor can share your medical information with the person you have given Power of Attorney

The State Laws: Living Wills page provides direct links to your state's Codes. You can also find customizable Living Will forms you can use to create your own healthcare directive.

State Laws: Estates & Probate

Every state has laws that govern estate planning and probate procedures. Nineteen (19) states have adopted some version of the Uniform Probate Code. The code is meant to encourage the similarity of laws across states.

More than half of the states have not adopted the Uniform Code so it will be important to understand your state's laws if you are wondering:

  • Whether a surviving spouse or domestic partner will inherit a home automatically in a community property state, whether their ownership is determined by joint tenancy on a deed, or if the home needs to be in the terms of the will
  • What of the decedent's property is considered separate property versus shared property?
  • How property will be distributed if it is in a living trust
  • How to name a guardian for minor children

The State Laws: Estates & Probate page provides direct links to your state's codes. You can also find customizable forms you can use to craft a last will and testament, or an entire estate plan.

State Laws: Intestate Succession

If you are named as a personal representative of an estate where there is no will, you will need to understand your state's intestate succession laws. That law defines who has a right to inherit. It will be your task to locate eligible heirs.

State Laws: Estate Taxes

Some states have what is sometimes called a “death tax." It is a tax levied on the estate for the transfer of real estate and personal property to a new owner. Some states have an inheritance tax, which is paid by the recipient who inherits real property. Some states have neither of these taxes. Find out if your state has estate taxes.

Federal Laws: Federal Estate and Gift Taxes

At the federal level, there are IRS Codes that address estate taxes, gift taxes, generation-skipping transfer of assets (gifting to a grandchild, for example), and special valuation rules. Learn more about how federal estate and gift tax laws are applied.

As a Probate Attorney for Help

It's not easy to read legal codes. When you work with a probate attorney to administer a will or a trust or to probate an estate, they will explain the applicable laws. Their goal is to make it easy for you to fulfill your role. If you are a nonresident of the state in which you will need to probate an estate, it may be particularly useful to work with a local attorney on a probate case.

Can I Solve This on My Own or Do I Need an Attorney?

  • DIY is possible in some simple cases
  • Complex estate planning situations usually require a lawyer
  • A lawyer can reduce the chances of a family dispute
  • You can always have an attorney review your forms

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