U.S. Inheritance Law Guide
Ultimo aggiornamento: 3 ottobre 2025
U.S. Inheritance Law
A practical overview of U.S. inheritance law. Rules are primarily set by state law, so details vary across jurisdictions. This guide covers intestacy basics, wills and revocable living trusts, non-probate transfers, spousal protections, disclaimers, the probate workflow (including small-estate options), cross-border considerations, a short tax note, a checklist, and FAQs.
- Intestate succession (state law)
- Wills, revocable trusts & non-probate transfers
- Typical clauses & planning tools
- Spousal protection & community property
- Acceptance, disclaimer & creditor issues
- Probate workflow & small-estate pathways
- Cross-border issues
- Short note on taxes
- Lista di controllo dei documenti
- FAQ
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Intestate succession (state law)
Dying without a valid will (“intestacy”) triggers a statutory plan under the state of domicilio (and, for real estate, under the property’s state). Patterns vary, but common features:
- Surviving spouse/registered domestic partner usually takes a primary share; amount depends on whether there are descendants or parents.
- Descendants inherit per stirpes/per capita by representation (state-specific formula).
- Absent descendants, shares pass to parents → siblings → more remote kin; failing heirs, property may escheat to the state.
- Some states adopt the Uniform Probate Code (UPC) model; others differ materially—local counsel is key.
Wills, revocable trusts & non-probate transfers
Wills
- Formalities typically: writing + signature + two witnesses (holographic wills valid in some states).
- Common add-ons: self-proving affidavit to simplify probate; separate tangible-property memo (if permitted).
- Pour-over will moves stray probate assets into a revocable trust at death.
Revocable living trusts (RLT)
- Avoid probate for funded assets, provide continuity in incapacity, centralize administration.
- No income/transfer tax benefits per se; still coordinate with beneficiary designations and community property rules.
- Amendable during life; becomes irrevocable at death (split into subtrusts as needed).
Non-probate transfers
- Beneficiary designations on life insurance, retirement plans (IRA/401(k)), transfer-on-death (TOD) or payable-on-death (POD) accounts.
- Joint tenancy/tenancy by the entirety with right of survivorship (title passes outside probate).
- Lady Bird deeds / enhanced life-estate deeds (limited states).
Coordinate titles/beneficiaries with the overall plan to avoid conflicts and unintended disinheritance.
Typical clauses & planning tools
- Personal representative / executor nomination; successors; bond waiver.
- Guardian for minor children; fiducia for minors/young adults with staggered distributions.
- Marital/Bypass (Credit Shelter) trusts; QTIP trusts for surviving spouse flexibility.
- Spendthrift clauses (creditor protection at the beneficiary level).
- No-contest (in terrorem) clause (state-specific enforceability).
- Digital assets authorization (RUFADAA-style provisions), HIPAA releases, and healthcare directives / POAs.
Spousal protection & community property
- Elective share (separate-property states): surviving spouse can elect a statutory fraction against the will (varies by state).
- Community property states (e.g., CA, TX, AZ, WA, NV, NM, ID, LA, WI with variants): each spouse generally owns half of community assets; separate property rules differ.
- Pre/postnuptial agreements can modify default rules if validly executed.
Acceptance, disclaimer & creditor issues
- Disclaimer (qualified renunciation) must comply with state law (and federal tax rules if tax-motivated) and meet strict timing/formal requirements.
- Heirs/beneficiaries typically take subject to creditor rights; probate establishes a claims window—missed claims may be barred.
- RLTs do not eliminate legitimate debts; trusts remain liable to the extent provided by law and trust assets.
Probate workflow & small-estate pathways
| Stage | What happens | Note |
|---|---|---|
| Opening | File will (if any), death certificate; court appoints personal representative (letters testamentary/administration). | Notice to heirs/beneficiaries; bond may be waived in the will. |
| Inventory & notice to creditors | Identify, marshal, and value probate assets; publish/serve creditor notice. | Claims period runs (state-specific). |
| Amministrazione | Pay debts, expenses, taxes; manage/sell assets if needed. | Accountings may be required (interim/final). |
| Distribution & closing | Distribute according to will/intestacy; obtain receipts/releases; close estate. | Summary or formal closing depending on court rules. |
Small-estate options: Many states offer affidavit o summary procedures below thresholds; some allow collection by affidavit for bank/brokerage accounts.
Real property in another state often requires probazione accessoria there—plan via titling, trust funding, or TOD deeds where available.
Cross-border issues
- Conflicts rules: the state of domicile generally governs personal property; the situs state governs real estate.
- Foreign wills: many states admit wills valid where executed or under foreign law; prove validity with affidavits/legalization as needed.
- Foreign personal representatives may need ancillary authority to act in the U.S.; banks/brokers may demand U.S. court papers.
- Non-probate assets abroad (e.g., EU bank accounts) follow local succession/transfer mechanics—coordinate early.
- Pair the legal plan with the U.S. estate/gift tax position and any applicable treaty on the tax side (few cover estate/gift).
Short note on taxes
This page addresses inheritance law (who receives, how to transfer). For taxes, see our U.S. Estate & Gift Tax Hub. Note: the U.S. imposes a imposta federale sulle successioni at the decedent level; several states impose separate estate or inheritance taxes with differing thresholds and rates. Planning should coordinate both legal and tax tracks.
Lista di controllo dei documenti
Identity & authority
- Death certificate; last will & codicils; trust agreement(s)
- Self-proving affidavit; witness info (if needed)
- Petition for probate; proposed orders; letters (testamentary/administration)
Assets & liabilities
- Bank/brokerage statements; beneficiary forms (IRA/401(k), life insurance)
- Real estate deeds & title reports; appraisals
- Company records (LLC/Corp units), operating/shareholder agreements
- Debt schedule; creditor notices; tax filings
FAQ
Do all estates require probate?
No. Properly titled non-probate assets (trust-funded, TOD/POD, joint with survivorship) can pass outside probate. Many states also offer small-estate procedures.
Is a revocable living trust always necessary?
Not always. Trusts help with incapacity planning, privacy, and multi-state assets—especially real estate—but entail setup and funding. Costs/benefits are fact-specific.
Can I disinherit my spouse?
In most states, no—the spouse may claim an elective share. In community-property states, the spouse generally owns one-half of community property.
Will my foreign will be recognized?
Often yes if it met the law where executed or the domicile’s law, but courts may require proof of validity and translations/legalization. Local counsel is key.
How long does probate take?
Commonly 6–12 months for uncomplicated estates; longer with disputes, tax issues, or illiquid assets. Small-estate/summary options can be faster.
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We coordinate multi-state/multi-country estates, align titling/beneficiaries with trusts and tax goals, and prepare court-ready inventories and accountings.