Whether you are the executor of an estate or a relative of someone that recently died, you may be asking who are the legal heirs? This article provides information on how to determine the legal heirs of a deceased person that died without a will in the United States. Legal heirs are those persons entitled under state intestate succession laws to inherit from an estate based on their relationship to the deceased when the decedent died without a will or other testamentary document. This is referred to as dying intestate. The laws that set forth the order of how estate property is distributed are called intestate succession laws. Descent and distribution statutes are set forth in a state's probate code or related estates statutes. For a list of state estate and probate laws, refer to our
state laws page.
The term heir is sometimes used informally to refer to those that may receive an inheritance under a will, but such individuals are testamentary heirs, not legal heirs that may receive a decedent's property based strictly on their relationship to the decedent under state laws. For example, when someone dies without a will, state law may provide that some portion of decedent's property shall pass to a surviving spouse, child, parent, sibling or other relative, making such individuals legal heirs. However, if the deceased made a will or trust, that document could provide an inheritance to a friend that would have received nothing if the deceased died intestate. A friend that inherits from the decedent's will is not a legal heir. If the deceased left a will, the persons entitled to inherit from the will are sometimes referred to as legatees. More detail is available in our Wills and Trusts section.If there are no other legal heirs to inherit property of the deceased, such property may escheat to the state, depending on applicable state law. If you do not have any surviving relatives that would inherit your property as a legal heir, making a will and estate plan is a way to exercise control over your assets. If you have legal heirs but do not want them to get anything when you die, see
disinheriting an heir.State laws generally provide that a certain portion of decedent's property shall go to the surviving spouse and children, but those laws are not the same in all states. If you have questions about how the decedent's estate will be distributed, the elective share, allowances or survivor rights of the spouse and children should be examined first. See spousal share.
Common Issues in Determining Legal Heirs
In some families, settling an estate will be fairly straightforward and there will be no issues in determining the heirs entitled to inherit. However, when there is significant inheritance money involved, disputes within the family or complex issues regarding parentage, determining heirship can become a long and costly process. See Will and Trust Disputes.The types of issues that may arise in determining the legal heirs of an estate include:1. Inheritance rights of NonMarital Children, also sometimes referred to as illegitimate children.2. Paternity issues or acknowledgement of a child by the deceased.3. Issues surrounding an adoption or inheritance rights of Adopted Children.4. Locating heirs that may be missing, living in another country, using a different name, etc.5. Determining whether
heirs and beneficiaries are alive.6. Determining whether an heir had children or other descendants.
If the decedent did not leave a will and there are unresolved issues about legal heirs, the executor may need to retain a probate lawyer to file with the court for an order determining the legal heirs of the estate.If you believe you are a legal heir of the deceased but the executor has not listed you as an heir in the estate administration, consult a lawyer about filing a formal request or application to determine heirship.
Heirs at Law
Another term for the legal heirs of a decedent is heirs at law. Legal heirs or heirs at law receive a share of the decedent's estate based on law rather than as a result of a testamentary document created by the decedent, such as a will. An inheritance received by an heir at law or legal heir is the result of the heir's relationship to the decedent, such as a marital or familial relationship, not from a bequest or devise made by the decedent in a will. State statutes set forth an order of descent and distribution that applies when a person domiciled in that state dies intestate, meaning they did not leave a valid will or other testamentary instrument for the distribution of their estate. Legal heirs or heirs at law receive an interest in the deceased person's estate based on these laws. If the deceased leaves a valid will, known as dying testate, the legal heirs or heirs at law do not receive anything based on the laws of intestate succession, because the estate is distributed pursuant to the decedent's will. For more, visit our Estate Planning Blog.
Inheritance Rights of Legal Heirs
The laws governing the right to inherit are complex. When reviewing intestate succession laws, keep in mind not all types of property pass according to the same rules. For example, personal property may pass differently than real property. Depending on how title to property is held, certain assets may not be part of the decedent's estate. See Non-Probate Transfers. Also, exceptions may apply that change the final outcome of a matter involving legal heirs to an estate. The legal heirs of a deceased person believed to be wealthy may receive nothing if estate property must be used to pay creditor claims, medical bills, funeral costs, probate fees, and other expenses.Inheritance laws are different from state to state. The share of an estate that any legal heir is entitled to receive also varies depending on the other heirs that survive the decedent, how they are related to the deceased, and the order of distribution set forth in the laws of that state. Consult an attorney for information on the inheritance rights of heirs and beneficiaries in a particular state.A deceased person's heirs sometimes have other rights as well. Depending on applicable laws, a deceased person's heirs may have the right to pursue certain causes of action, such as tort claims related to the decedent's death.
Probate Court Forms for Determining Heirs
If judicial intervention is required to determine the legal heirs and how estate property should be distributed, the personal representative or executor may need to complete one or more probate court forms listing the heirs and other persons with an interest in the estate. The types of probate court forms that may be required include:a. Affidavit of Heirshipb. List of Heirsc. List of Interested PersonsThe names of the forms used to determine legal heirship may be different in your local court. For a list of forms required to
probate an estate, contact the local probate court in the county where decedent was domiciled. The personal representative or executor may also be required to provide legal heirs with notice of probate of the estate in compliance with state statutes. Information on forms for executors is available on our
Executors Estate Forms page.A probate court may issue an order of heirship with the names of the legal heirs.
Resolving Heirship Issues
Do not attempt to determine the legal heirs to an estate without professional help. For assistance distributing estate property to the legal heirs or filing a claim against an estate, contact a probate lawyer. Your attorney may file a petition with the probate court, file other legal documents, and respond to any other matters involving the decedent's estate or your rights as an heir.Probate and estate administration matters are time-sensitive. There are strict deadlines set by applicable laws on when claims, paperwork, and other matters must be filed. State laws typically contain provisions on how an estate should be distributed when an heir cannot be found. For example, the law may provide that after a specified period of time, the estate will be distributed as if the missing heir did not survive the decedent. Estate distribution laws on missing or absent heirs vary depending on the state.Copyright 2020 Pennyborn.com. ALL RIGHTS RESERVED.This article was published on October 30, 2018. Updated on December 23, 2019.
INFORMATION ON THIS SITE, INCLUDING ARTICLES, ESTATE PLANNING FORMS, AND THE ESTATE PLANNING BLOG, DOES NOT CONSTITUTE LEGAL, FINANCIAL OR TAX ADVICE. Pennyborn.com is not a law firm and is not a substitute for a lawyer. Your use of this site does not create an attorney-client relationship. Information on this site is for educational purposes only and may not be accurate, complete or up to date.
For information about Pennyborn.com and how to advertise on this website Contact Us.