- When a person dies, the debts and assets she owned at the time of death comprise her testamentary estate. In terms of property, only assets that she owned solely in her name are included in a testamentary estate. This type of property is commonly referred to as probate property. The relatives or representatives of the person must petition the court to oversee the distribution of probate property. A person can dictate how her probate property is to be distributed by writing a will.
- Each state has its own laws and statutes regarding wills. In general, for a will to be legally valid, it must be written by a testator with the intent that it control the disposition of his property when he dies. The testator must sign the document in the presence of at least two witnesses. To write the will, the person must be an adult (typically 18 years or older) who understands that he is writing a will and knows the nature of his estate and knows who he is giving his property to.
- If a person dies without a will the state's intestate succession statute applies. This statute provides a default distributions structure; neither the decedent nor the family of the decedent has any control over how the property is distributed. The exact distribution scheme may vary by state. According to the Encyclopedia Britannica, in general, if a person was married at the time of death and had no children, the entire estate would go to the surviving spouse. If the decedent was unmarried and had children, the estate would be distributed among his next of kin.
- Probate is the legal process by which a person's estate is settled. After death, a relative or representative of the decedent must file documents with the probate court. The documents typically include a petition to open probate, a copy of the will (or a declaration that there is no will) and the death certificate. The court then oversees the distribution of the estate.
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