How to Determine Who Is an Heir

by Andrine Redsteer

    Although the terms "heir" and "beneficiary" are often used as though they mean the same thing, they do not. Beneficiaries are parties who inherit according to a will, while heirs inherit based on the rules of descent and distribution. Thus, you cannot determine heirs by looking to a last will and testament because parties named in a will are considered beneficiaries.

    Where to Look

    In every state there are laws that list the order of heirs. These laws are called "laws of intestate succession." When a person dies intestate, or without a will, the laws of the state where he resided determine how his estate is distributed. According to these laws, specific family members, or heirs, have a right to inherit a share of the decedent's property. These laws are typically found in a state's probate code. Although state laws vary, there is a common hierarchy of heirs.

    Order of Heirs

    Although laws are not identical in every state, many states have similar ways of dividing property among heirs. Generally, if the decedent was married when he died, it will affect the way his property is divided. Moreover, if the decedent lived in a community property state, his spouse may receive all the property they acquired together. This is because community property states view marriage as a partnership in which marital assets are shared equally.

    Spouses and Children

    It is common for a surviving spouse to receive a portion of her deceased spouse's estate. Generally, a surviving spouse receives all of the marital estate if her deceased spouse had no children, parents, sisters or brothers. If the decedent was married and had one child, his surviving spouse may receive one-half of the marital estate with the other half going to the child. When there is more than one child, a surviving spouse may inherit one-third of the marital estate with the other two-thirds going to the children in equal shares.

    Collateral Heirs

    Sisters, brothers and parents are considered "collateral heirs" because they do not descend directly from the decedent. Generally, if a person dies with no spouse or children, the next in line to inherit are his parents; if he has no living parents, then his sisters and brothers are next in line. It is also common for property to be divided in equal shares. For example, if a decedent's only heirs are two brothers and one sister, each will receive one-third of his estate.

    Probate Courts

    Probate courts help determine heirship. These courts typically have a process through which relatives of the decedent can find out who the heirs of the estate are, as well as how much each heir is entitled to receive. Heirs can file for a determination of heirship with the probate court in the county where the decedent lived.

    About the Author

    Andrine Redsteer's writing on tribal gaming has been published in "The Guardian" and she continues to write about reservation economic development. Redsteer holds a Bachelor of Arts in history from the University of Washington, a Master of Arts in Native American studies from Montana State University and a Juris Doctor from Seattle University School of Law.