The Rights of Heirs-at-Law

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An heir-at-law is anyone who's entitled to inherit from someone who dies without leaving a last will and testament or other estate plans. This status can be an important factor not only in settling an estate but also in determining who might be entitled to challenge or contest a will when the deceased does leave one. 

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. 

Frequently Asked Questions (FAQs)

Who are heirs-at-law in California?

As in most states, the surviving spouse is the first in line if the deceased was married, followed by the deceased's children. California, however, is a community property state, so a surviving spouse would only inherit the entire estate if the deceased left no children. Otherwise, they would receive only the deceased community property assets. Their separate property would be divided among the surviving spouse and children.

What happens if someone dies with no will, and no heirs-at-law can be found?

In most states, the entire estate would pass ("escheat") to the state, in most cases, if no living heirs can be found. Under no circumstances would it pass to friends or acquaintances.

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  1. California Living Trusts. "Who Is Responsible for Inheritance When Someone Dies Without a Will?"

  2. California Legislative Information. "Chapter 1. Intestate Succession Generally [6400 - 6414]."

  3. Legal Information Institute. "Pure Per Stirpes."

  4. Maryland, The Office of the Register of Wills. "Frequently Used Terms - Collateral Heir or Legatee."

  5. Indiana General Assembly. "IC 29-1-7-7: Notice of Administration."

  6. Superior Court of California, County of Santa Clara. "What if There Is No Will?"

  7. Haimo Law. "What Is Ancillary Administration or Ancillary Probate?"

  8. Superior Court of California, County of Alameda. "Who Can Contest a Will?"

  9. Superior Court of California, County of Santa Clara. "When Can a Will Be Contested?"

  10. "When There Is No Will."

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