After a loved one dies, the long process of probate begins. If your loved one did not leave a will, which is known as dying intestate, you and others may be wondering how to divide the assets in the estate. On the other hand, perhaps your loved one left a will that has created confusion by omitting names of those who were close to the deceased. How does the law deal with these matters?

In New York and other states, probate courts have certain laws that determine who has the primary right to the assets of someone who dies. Not just anyone can make a claim to your loved one’s property, and it is important to understand your rights and when it is appropriate to take legal action.

Your place in line

If you are an heir-at-law, you are legally entitled to an inheritance whether your loved one died intestate or left you out of the will. Usually, those who are first in the order of intestate succession are the spouse and children of the deceased. Typically, if your loved one dies without a will, the law divides the estate of the deceased between the spouse and children.

If you are a surviving spouse whose partner left a will but did not include you in it, the law protects you from disinheritance, and in most cases, you will not have to contest the will in court to get your share of the inheritance. You would simply file a claim. However, if you are a child of a deceased person who left you out of the will, you will likely have to contest the will through a lawsuit.

Other heirs-at-law who may have cause to contest a will include parents, siblings, grandparents, and nieces and nephews, in different orders according to the state. These may have a claim to an intestate estate when the deceased has no surviving spouse or children, or they may contest the contents of a will that omits them.

A will contest is not easy

Because there are so many unique circumstances in families and probate cases, contesting the will does not necessarily mean winning an inheritance, even if you are an heir-at-law. A will contest is a complex and difficult process that involves proving that the deceased did not have the capacity or freedom to make a valid will. This is why it is wise to have legal help with your claim.