What Constitutes an Heir?

by Beverly Bird

Your "heirs" are your relatives. You may not like all of them, but if you die without leaving a will, chances are they’ll inherit your estate -- or at least a portion of it. When you write a will, you can leave your property to anyone you like; these individuals are known as your "beneficiaries." If you don’t leave a will directing to whom you’d like your property to pass, your state government will give it to your heirs, according to rules outlined in state law.

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Intestate Succession

The court won’t divide all your property equally among your heirs if you don’t leave a will. Some relatives have priority over others. Those with the least priority won't inherit unless the relatives in line before them have all passed away. This is a statutory "order of intestate succession," and it doesn’t take emotion or need into consideration. You might be very fond of your nephew, and he may be living hand-to-mouth and really need your money, but if his parent is still alive, he won’t inherit from you. His parent -- your sibling -- is more closely related to you than your nephew.

Immediate Relatives

Your spouse is your most immediate heir and will inherit the lion’s share of your estate if you die without a will. If you don’t have any children, most states will award her your entire estate. She is your “heir apparent.” No one else can receive the entirety of your estate as long as she is alive. If you do have children, including adopted children, your spouse might receive half of your estate and the court will divide the balance among your children. The exact percentage varies according to state law. If you’re not married, your children are your most immediate heirs; they will receive all your property. In some states, your grandchildren receive shares only if none of your children are still living at the time of your death. In other states, some or all of your grand children may receive shares if only some of your children that bore grandchildren have predeceased you. If you have no spouse, no children and no grandchildren, your parents are usually next in line to inherit.

Distant Relatives

If you have no spouse, no children, no grandchildren and your parents predecease you, the court will look for other relatives to inherit your property. The most distant of these are sometimes called “laughing heirs.” They may never even have met you, so they probably won’t shed a tear when you’re gone. Although the exact order of succession varies from state to state, if your immediate heirs all predecease you, your siblings would usually be next in line to inherit. If they’re dead, their children would receive your property. If none of them have children, the court might look to your aunts, uncles, cousins, or even your cousins' offspring. Most states do not consider your in-laws to be your heirs. They’re related to you by marriage, not by blood.

Escheat of Estate

If you have no living heirs, or if the court fails to locate them, your estate will “escheat.” The court will give your worldly possessions to the state. Therefore, in a sense, your state is your heir as well. It can inherit from you by intestate succession if you don’t leave a will.