Determining Heirs

Updated Nov 19, 2024
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Family with Children/Heirs

The executor is responsible for appropriately distributing the net estate to the rightful heirs. In many cases, the heirs are clearly spelled out in a will, and this task is simple. Just enter the requested information in the Heirs tab (see Define Heir for instructions).

Terminology

There are several overlapping terms used to refer to people who inherit from an estate:

  • Heir: Usually someone who is related to the decedent, and would normally inherit from the estate even without a will.
  • Devisee or Legatee: Someone specifically named in the will. Historically, a devisee inherited real estate, and a legatee inherited personal property (including cash).
  • Beneficiary: General term for someone who will inherit from an estate, but also specifically used for asset classes (such as a 401K) that bypass probate and go directly to the person named.

To keep things simple, EstateExec uses the common term "heir" when referring to anyone who will inherit from the estate, and additionally uses the term "beneficiary" when dealing with assets that automatically bypass probate.

If An Heir Has Died

If an heir died after the decedent, then that heir's estate simply inherits whatever that heir would have inherited.

If an heir died before the decedent, then the following rules apply in priority order:

  1. If the will names an alternate recipient, then the alternate receives the inheritance instead.
  2. If the recipient was not specifically named, but was instead simply part of a group (i.e., "my children"), then the remaining members of the group split the inheritance among themselves.
  3. Some wills specifically state that any bequest to a pre-deceased person should instead become part of the residuary estate, and thus be distributed to the residuary heirs along with everything else.
  4. Otherwise, the particular state's "anti-lapse" laws may apply, generally assigning the inheritance to the dead heir's blood relatives, in a particular priority order. If you are uncertain as to who should inherit in this case, you may want to speak to an estate lawyer.
  5. If none of the above conditions are met, then the property becomes part of the residuary estate, and is distributed to the residuary heirs along with everything else.
  6. If there are no surviving residuary heirs, and the state's anti-lapse statute did not apply (perhaps because there were no qualified blood relatives of the deceased residuary heirs), then the residuary estate is distributed according to the state's laws of intestate succession (as if there were no will).

Missing Heir

If you cannot find someone who is supposed to inherit from the estate, you might try to track them down via Facebook, LinkedIn, or other social media. You might also enlist the help of other known relatives and acquaintances. Finally, you might consider hiring a professional heir search firm or a licensed private investigator. EstateExec does not recommend or endorse third-party services, but you might consider Heir Search .

If you simply cannot find an heir, you can usually place that heir's share in trust with the state. After a state-specific waiting period (measured in years), if the missing heir does not claim the inheritance, his own intestate heirs (see below) can claim it. If there is no one to claim it, the inheritance will escheat to the state, meaning that the state will keep it.

Organizations as Heirs

If the will names an organization to inherit from the estate, you can typically treat that organization as just another "heir". Of course, you will want to be careful when dealing with the organization (usually a charity or a non-profit) to be sure that you are in contact with someone who has authority to sign legal documents on behalf of the organization.

If the will names an organization that ceased to exist before the decedent died, then the probate court will have the final say in what happens to the inheritance. For example, if the will gave a bequest to a charity that has renamed itself but still serves the same basic mission, the court will likely rule that the renamed charity receive the inheritance as planned. Alternatively, if the organization simply no longer exists, it is likely that the court would rule to include the intended inheritance with the residuary estate, to be distributed accordingly. In some jurisdictions, it's even possible that court would name an alternative recipient of its choice, that it believes matches the gist of the decedent's intended wishes.

If the organization ceased to exist after the decedent died, it can get even trickier, and you may want to consult a lawyer.

  • If the organization simply changed its name, was acquired by another organization, or merged with another organization, common sense would dictate that the current form of the organization would be entitled to the inheritance.
  • If the organization went bankrupt, stipulations in the will and state law may determine whether the inheritance should be given to the creditors (i.e., successors) of the organization.
  • If the organization simply no longer exists, then all bets are off, and its even possible that the court would escheat the funds (take possession for the government).

Charitable Donations

An executor does not have the authority to make charitable donations unless explicitly authorized by the will. In cases where charitable donations are authorized, the executor should treat such donations similarly to all other bequests and distributions, subject to any specific instructions in the will. In essence, the charity becomes one of the "heirs".

If There Is No Will

If there is no valid will, then the estate is considered intestate, and must be distributed according to state law in the decedent's legal state of residence. You don't necessarily need a lawyer in such cases, but one can provide reassurance that you are doing the right thing.

Generally, only spouses and blood relatives will inherit under such circumstances: unmarried partners and friends get nothing. Different states define these rules differently, but all give significant preference to a surviving spouse and direct children. If no spouse or children survive, then typically the children of the children inherit (i.e., the grandchildren). If no direct descendants exist at all, then inheritance typically reverts to the decedent's parents, siblings, grandparents, and other next of kin. If no relatives can be found at all, then the estate "escheats" to the state, meaning the government gets the property.

Note that if the estate owns real estate somewhere outside the decedent's legal state of residence, then that property must be inherited according to the state laws that govern that external jurisdiction. Consequently, that portion of the estate may get allocated differently, or go to different heirs entirely.

Other Complicating Factors

In many states, if the decedent's will leaves anything to a spouse who the decedent divorced after making the will, those bequests will be automatically invalidated. If an heir actually caused the death of the decedent, most state laws bar that heir from receiving anything, to prevent him or her from profiting from a crime. Some states bar adulterous spouses from inheriting, and other states bar people from inheriting anything from a child they abandoned. If you think there are extenuating circumstances for your estate, you should research the issue for the decedent's state, or ask an attorney.

See also Dealing with Heirs.

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