Who Is an Heir-at-Law?
Exactly who qualifies as an heir-at-law can depend on where the decedent died and what he owned. The rules are established individually by each state so they can differ a little. Most states’ laws are very similar, however. Heirs-at-law and their rights to inherit are typically decided in an order called “intestate succession.” The more closely related you are to a decedent, the more likely it becomes that you are an heir-at-law.
Surviving Spouses and Children
A surviving spouse is invariably the first in line to inherit if the decedent was married. In most states, she shares the estate with his living children. His grandchildren would be heirs-at-law only if their parents are deceased because a parent’s share typically skips to his child rather than to his siblings—the decedent’s other children. This legal process is known by the legal term “per stirpes,” which literally means “by roots.” Per stirpes, bequests descend to the next generation. They do not move “sideways” to others of the same generation.
Other Relatives—“Collateral Heirs”
The deceased’s parents, siblings, grandparents and other next of kin would inherit only if he left no surviving spouse, children or grandchildren. Intestate succession usually occurs in that order. These people are considered “collateral heirs” because they would only inherit if no more immediate relatives are living.
Finding Unknown Heirs
When it appears that someone has died without any known heirs-at-law, some states require that a special notice be run in the newspaper, alerting individuals to come forward if they believe they are related to the decedent. These people can then file requests with the court for determinations of heirship which would give them a legal right to inherit. Some companies specialize in searching out and identifying next of kin and heirs-at-law, and sometimes a simple review of the decedent’s personal paperwork can impart clues. If no heirs-at-law can be identified, the decedent’s estate would typically “escheat” to the state. In other words, the state would receive his property.
Probate Without a Will
Probate is typically required even when someone dies without a will. He still has an estate if he owned any property or assets in his sole name, and probate is the legal process by which that property is transferred into the ownership of living beneficiaries.
Which State’s Rules Apply
In most cases, a deceased person’s heirs-at-law are determined by the intestacy laws of the state in which she lived at the time of her death. The intestacy laws of another state might apply if she owned real estate or tangible personal property there. That state wouldn’t have jurisdiction over her entire estate, but rather just the particular property that’s located there. That state would determine how the property should be distributed. Sometimes this can result in a different set of beneficiaries or different shares among the same beneficiaries.
Heirs-at-Law and Will Contests
When a decedent does leave a will but glaringly omits someone who would have inherited if he had died intestate, this individual has “standing” to challenge or contest the will in court. Not just anyone can do this—standing means the individual has some financial stake in the estate. This might be the case if the deceased left his entire estate to one child and omitted mention of his other child entirely in his will. An heir-in-law would qualify. Status as an heir-in-law does not necessarily mean that a lawsuit to overturn the will would be successful. The heir-at-law would also have to establish that the deceased didn’t intentionally omit him from the will, disowning him. An heir-in-law isn’t automatically entitled to inherit when there’s a will that doesn’t mention him, but only if the decedent had died without any will at all or if there are issues with the last will. A surviving spouse is an exception to this rule. All states prohibit a married individual from disowning his spouse and they have laws in place to make sure she receives her fair share of his estate. She’s always an heir-at-law, but she would not have to contest the will to claim her share. She would have to bring the omission to the attention of the probate court, however, usually by filing a claim.
