State & Federal 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.

Federal and state laws cover all aspects of a deceased person's estate. This includes the inheritance rights of their loved ones, heirs, and estate taxes.

Some of the many things inheritance law covers include:

• Who may inherit: Even without a valid will, state intestacy laws control property distribution. These laws give some family members the right to inherit a certain percentage of the decedent's estate.
• The legality of estate planning documents: This includes items such as a will or a revocable living trust. A probate court judge relies on state laws to determine whether or not a will is valid, if heirs are eligible to inherit, which creditors may have a valid claim, and other contested issues.
• Property transfer: A legally valid will or a trust can transfer personal property. This can include real estate, bank accounts, retirement accounts, IRAs, and other assets. A deed with the right of survivorship can transfer ownership of a home. You can use beneficiary designations on a life insurance policy to transfer benefits, retirement plans, and annuities.
• The process of probating or administering an estate: The probate court administers state laws relating to probate and estate administration. A personal representative or executor is often inexperienced with the probate process and may choose to hire a probate lawyer. An attorney can help them understand their fiduciary duty when they take on the crucial role of closing an estate.

In this section, you will find information on the following:

• State and federal laws regarding the estate planning and administration process
• Information on living wills (health care directives)
• Last will and testaments
• Estate administration and the probate process
• Estate taxes

Learn About Estate Planning State Laws: A Living Will

A living will, also referred to as either a health care directive or medical directive, is a legal document that allows you to communicate your wishes for medical treatment. This includes end-of-life decisions and long-term care. A living will is an advanced directive that comes into play if incapacity or illness prevents you from communicating health care decisions. This document is often paired with two other documents:

• A healthcare power of attorney (also called a medical power of attorney): This authorizes someone to make decisions on your behalf when you cannot. This person may also be called your healthcare agent.
• A HIPPA release form: This ensures your doctor can share your medical information with your attorney-in-fact (Power of Attorney).

The FindLaw Living Wills: State Laws page links directly to your state's statute for a living will. You can also find customizable living will forms to help create your health care directive.

State Laws: Estates & Probate

Every state has laws that govern estate planning and probate procedures. As of 2023, only eighteen (18) states have adopted a version of the Uniform Probate Code. The code seeks to encourage the similarity of laws governing estates and probate.

Since the Uniform Code has not been universally adopted, it's important to understand your state's laws if you are wondering about:

• Whether a surviving spouse or domestic partner will inherit a home automatically in a community property state
• Whether the decedent's property is considered separate property versus shared property
• Property distribution from a living trust
• How to name a guardian for minor children or dependents with special needs

The State Laws: Estates & Probate page provides direct links to your state's statutes. Customizable forms are also available for you to use, which will enable you to start the basic estate planning process. Included with a last will and testament is a durable power of attorney, providing the means to allow another individual to handle your financial affairs.

These state-specific forms can allow you to create an entire estate plan. A local estate planning attorney can provide legal guidance and assist with your legal documents.

State Laws: Intestate Succession

Intestate succession laws govern the distribution of assets when there is no will. If you are named as a personal representative of an intestate estate, you must 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 transferring real estate and personal property to a new owner. Some states have an inheritance tax paid by the recipient who inherits the real property.

Federal Laws: Federal Estate and Gift Taxes

The Internal Revenue Code addresses:

• Estate taxes
• Gift taxes
• Generation-skipping transfer of assets (gifting to a grandchild, for example)
• Special valuation rules

Learn more about the application of federal estate and gift tax laws.

Ask a Probate Attorney for Help

It takes work to interpret legal codes, and it can be wise to get legal advice from an attorney well-versed in estate planning law, probate, or elder law. When you work with a probate attorney to administer a will, a trust, or to probate an estate, they will explain the applicable laws. Their goal is to make it easier for you to fulfill your role.

Working with a local attorney on a probate case may be particularly useful if you are a nonresident of the state where you will need to probate an estate.