A testate estate is one in which has a last will and testament. Tradition was that the will guided disbursement for real estate and any property attached to it, such as buildings, water rights, or timber. Movable personal property, such as money, jewelry, furniture, tools, services of servants or slaves, debts owed to the deceased, and livestock, were disbursed according to the testament. Laws in the United States for the most part let a person distribute his or her estate as they wish to, as long as it does not leave any heirs dependent on the state to live.
There are three different kinds of wills:
- Attested wills are written documents that are witnessed with signatures. The witnesses validate that the deceased directed the instructions of the will and that he or she was in a sound state of mind when it was written.
- Holographic wills are completely handwritten by the testator. This type of will is also signed and dated. However, it is not witnessed. This will is only valid if no one else writes on it and it is found among the deceased’s other important documents. A holographic will is not valid at all in some jurisdictions. Unless all valuable papers are also filed, it can’t be filed with a third party or attorney. In some jurisdictions, this kind of will is not valid.
- Nuncupative wills are verbal wills that are transcribed by witnesses. These are usually known as “deathbed” wills. The witnesses must present the will to the court within a specified period of time after the testator dies. This kind of will is not valid in some jurisdictions.
An intestate estate is one in which a person dies without a written will. In this type of case, the property is divided by an administrator according to the appropriate state law. In most states, the widow of a male receives one-third of the estate for her lifetime (known as her dower rights) and the rest is given to the children in equal distributions. If one of those children is deceased, the share of property goes to the child’s legal heirs.
The intestate laws for illegitimate children is different for the mother’s and the father’s estates. The child is entitled to an inheritance from his or her mother. However, he or she can’t get an inheritance from the father unless he has verified his parenthood in writing, duly witnessed and accepted by the court, or if he later marries the mother. In some states, the father can petition for a legislative act to legitimize his children so they can inherit from his estate. Some states allow naturalization of the deceased by special act so their heirs can inherit.
If there is no issue at a person’s passing, his or her estate is given to the spouse. If there is no spouse, the deceased’s parents and brothers and sisters inherit the estate. Some states end their laws on descent of property at this point. Other states have lines of descent laws that are very complex, even addressing cousins, nephews, and other more distant relatives.
Some states recognize “community property.” These include Louisiana, California, Washington, Idaho, and others. Community property states hold that the property that a husband and wife own at the time of marriage and the property that each of them inherits as an individual after the marriage are separate property. Any property that the couple acquires jointly while they are married is considered community property, and each owns one-half. When one spouse dies, the estate that is in common is given to the surviving spouse, who is free to sell, mortgage, exchange, bequeath, or gift it in writing.
In states that do not use the community property law, the dower right of the widow is one-third of her husband’s property for her lifetime. All transactions must recognize and respect this right, including land transfers. A man has a similar right called courtesy, entitling him to one-third of his wife’s estate, if there are no child heirs. If they have at least one child who can inherit, then the husband receives a life-estate in all of the property his wife owned at the time they married as well as any she inherits while they are married. These rules can be changed in writing at the time of marriage. Recent laws allow a woman to renounce her dower claim to the estate of her husband. In order to do this, she must show that the total worth of the estate was full disclosed to her, and that she understands what is being renounced. This prevents undue litigation against the estate. A wife cannot be disinherited and left dependent on public assistance. Most states will deny welfare if the husband or ex-husband is able to support his wife’s living expenses.