The Basics of Intestate Heir Law

Woman completing last will and testament

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The term "heir" is frequently heard with intriguing implications in movies and books, but what exactly is the definition?" It's anyone who is entitled to inherit from the estate of someone who fails to leave a valid last will and testament or to create any other form of an estate plan

Rules and Laws Defining Intestate Heirs 

Determining who is entitled to inherit comes down to each state's "intestacy" laws. Sometimes it's the state where the decedent lived that determines his heirs. Sometimes it's the state where his physical property was located at the time of his death, and to really complicate things, sometimes it's both.

When a decedent leaves a will, his heirs may be beneficiaries under its terms — or they may not be. Likewise, all beneficiaries are not necessarily heirs. Here's an example of how an intestate estate — one without a will — is typically distributed. 

The Heirs That Are Eligible to Inherit

  • The order in which heirs inherit from a decedent's estate when he has no estate plan is called "intestate succession." It's a list of kin who have the first right to inherit. Someone further down on the list typically will not inherit anything if those who are ahead of him are still living.
  • A surviving spouse almost invariably receives at least half the decedent's estate. She may receive the entire estate if the decedent leaves no living children or grandchildren.
  • Spouses and children typically share the entire state if all are living. If a child has predeceased the decedent, his children — the decedent's grandchildren — will typically inherit their parent's share. Otherwise, they may not be entitled to personally inherit if their parents are still living.
  • Parents and siblings are typically next in line, followed by aunts, uncles, nieces, nephews, and cousins. In some states, the decedent's parents may share his estate with his surviving spouse if he has no living descendants — children, grandchildren or great-grandchildren. 
  • Unmarried partners, friends, and charities are not heirs, regardless of how emotionally close they may have been or how much the decedent supported them during his lifetime. 

A Few Other Rules 

  • Adopted children are heirs just as though they were born to the decedent, as well as children that may be born after his death. Stepchildren are typically not considered heirs or entitled to inherit from their stepparent by law if he did not leave a will naming them as beneficiaries. 
  • An heir who criminally caused the death of the decedent is often barred from inheriting from him.

Property Not Subject to Intestate Succession 

Heirs can only inherit from a decedent's probate estate — and yes, probate is still required without a will. The process just follows state law rather than a decedent's final wishes. 

The probate estate does not include property that passes directly to a named beneficiary by some other means, such as by deed or a life insurance policy. If a decedent dies owning only real estate titled with someone else with rights of survivorship and a life insurance policy naming his son as beneficiary, his other heirs would receive nothing because he would have no probate estate. 

NOTE: Heirship and intestate succession can be a complicated area of law, and the laws can change frequently. The above guidelines may not hold true in every state and may not reflect recent changes. Please consult with an attorney for the most up-to-date advice. The information contained in this article is not legal advice and it is not a substitute for legal advice.

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