The law of succession governs the transfer of property, assets, rights, and obligations from a deceased person (the decedent) to their heirs or beneficiaries. It sets out the legal rules and procedures for determining who is entitled to inherit the decedent's estate and how the assets are distributed.
Succession: Succession refers to the process by which a person's assets and liabilities are transferred to their heirs or beneficiaries upon their death. It encompasses the legal rules and procedures for determining who is entitled to inherit the deceased person's estate, either according to their will (testate succession) or in the absence of a will (intestate succession).
Intestate succession: When a person dies without a valid will or without disposing of all their assets through a will, their estate is distributed according to the laws of intestate succession. These laws vary by jurisdiction but generally establish a predetermined order of priority for distributing assets among surviving family members, such as spouses, children, parents, and siblings.
Testate succession: Testate succession occurs when a person dies with a valid will. The will specifies how the decedent's assets are to be distributed, designates an executor to administer the estate, and may include other provisions such as appointing guardians for minor children or creating trusts.
Wills and testamentary documents: A will, also known as a last will and testament, is a legal document that allows a person (referred to as the testator) to specify how they want their assets to be distributed after their death. It must meet certain formalities, such as being in writing, signed by the testator (the person making the will), and witnessed by competent individuals. It can also address other important matters, such as the appointment of guardians for minor children and the designation of an executor to administer the estate. Testamentary documents, including codicils and revocations, can modify or revoke a will.
Probate: Probate is the legal process through which a will is proved to be valid by a court. It involves the formal recognition of the executor named in the will and the authority granted to them to administer the estate. Probate also includes the collection, valuation, and distribution of the deceased person's assets, payment of debts and taxes, and addressing any disputes or challenges that may arise.
Personal representative: A personal representative is an executor (if named in the will) or an administrator (if there is no will or no executor is named) appointed to administer the estate and carry out the wishes of the deceased as expressed in the will or as determined by law. Their responsibilities include gathering and protecting assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.
Estate administration: Estate administration involves the overall management and settlement of a deceased person's estate. This includes identifying and valuing assets, settling debts and taxes, handling legal and financial matters, and distributing the estate to the rightful beneficiaries. The executor or administrator is responsible for ensuring that the estate administration is conducted in accordance with applicable laws and the wishes of the deceased.
Distribution of assets: The law of succession determines the order and manner in which the decedent's assets are distributed. This includes identifying and valuing assets, settling debts and taxes, and allocating the remaining assets to the beneficiaries. The distribution can be in the form of specific bequests, monetary gifts, or percentage shares.
Rights of surviving spouses and dependents: Many jurisdictions provide certain rights and protections for surviving spouses and dependents, even in cases where the decedent's will may have excluded them or provided for them inadequately. These provisions often include the right to a statutory share or an elective share of the estate.
Challenges and disputes: Disputes and challenges may arise in the context of succession, particularly in cases involving contested wills, allegations of undue influence or lack of capacity, or disagreements among family members or interested parties. These disputes may require court intervention to resolve the issues and determine the rightful beneficiaries.
Probate court: The probate court, also known as the surrogate court or probate registry, is the judicial authority responsible for overseeing the probate process. The court reviews and approves the validity of wills, appoints executors or administrators, resolves disputes, and supervises the administration of estates. It ensures that the estate is distributed correctly and in accordance with the law.
Estate taxes: Estate taxes, also known as inheritance taxes or death duties, are taxes imposed on the transfer of assets from a deceased person to their beneficiaries. These taxes are levied on the total value of the estate and can vary depending on the jurisdiction and the value of the estate. Estate tax laws often include exemptions or thresholds for smaller estates. Estate planning may involve strategies to minimise tax liabilities, such as gifting, trusts, or charitable contributions.
Disputes and contested wills: Disputes and contested wills may arise when there are disagreements among family members or interested parties regarding the validity or interpretation of a will, the distribution of assets, or the appointment of executors. These disputes may require court intervention to resolve the issues and determine the rightful beneficiaries.
The law of succession can vary significantly between jurisdictions. Different countries or states may have different legal frameworks, rules, and procedures governing inheritance and the administration of estates.
You can learn more about this topic with our Wills and Administration of Estates notes.
