Probate rights determine who can claim a deceased person’s estate, with wills and family relationships playing a key role. Spouses are usually entitled to most assets, while children may not be unless stated in a will. Adopted children have the same rights as biological children, but legal ties with birth parents can complicate matters. Creating a will is the easiest way to ensure proper distribution of assets.
Probate rights are the laws that determine who can claim a deceased person’s estate. Jurisdictions have different sets of regulations that deal with the finer points, but they all share some similarities. In most cases, individuals’ rights to claim property and assets after a death are dictated by a will or family relationship with the deceased. Rights may differ for spouses, ex-spouses, biological children and adopted children with regard to claiming part of a property.
Creating a will is generally the easiest way to ensure that all assets are properly distributed after death. This simple document allows a person to determine precisely what property, money, and other assets go to particular individuals after death. Under inheritance laws, an individual can challenge a will in court if he believes the will is not an accurate distribution of assets. If the deceased person has no will, which is called a dying “tenant,” the estate is usually distributed according to the laws of the jurisdiction.
A spouse is normally provided with most of the assets left, under most probate rights. In the United States, for example, there are two types of marital inheritance rights: community property and non-community property. In a common property state, a spouse is automatically entitled to half of what they earned during that marriage. In a non-community property state, there is no guarantee of how much can be claimed, but it is generally between one third and one half of the deceased’s estate, however some states base the amount on the length of the marriage. Also, in most cases, unless otherwise specified in a will, ex-spouses lose any inheritance rights once the divorce is finalized.
Children claiming inheritance rights face slightly more ambiguous rules. In general, children may not be entitled to any rights and inheritance of the deceased’s assets unless stated in the will. There are exceptions to this rule, such as if a child was born after the will was originally written. In this case, known as accidental disinheritance, the son is given an equal share to the other siblings even if the will does not provide for it.
Adopted children occupy a complex realm of inheritance because they have both biological and legal parents. In almost all cases, the adopted child is granted the same rights as if he were born biologically into the family. The relationship between the birth parents and the child is where the problem becomes more complicated. Generally, once the adoption has taken place, all legal ties between the natural parents and the child are severed. In some jurisdictions, for example, biological parents can effectively claim an inheritance if their child predeceases them.
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