Who Are Heirs to a Last Will & Testament?

by Beverly Bird
An heir is someone who inherits despite the terms of a will.

An heir is someone who inherits despite the terms of a will.

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The term “heir” is often confused with “beneficiary” when, in fact, definitions of the two differ. Heirs are individuals who inherit from an estate because they are family members of the deceased, not because they were named as a beneficiary in the deceased’s will. In fact, the deceased may not have left a will at all.

Distinction From Beneficiaries

A beneficiary receives an inheritance through a last will and testament whether she is related to the deceased or not. She receives a bequest because the deceased chose to leave her something. An heir receives an inheritance because her relationship with the deceased is somehow protected from disinheritance by the laws of the state in which she lives.

Inheritance by Disinheritance Laws

Most states will not allow you to disinherit a spouse, and many will not allow you to disinherit a minor child either. Both are your heirs because they have a legal right to a portion of your estate. If you intentionally omit your spouse or your minor children from your will, or if you marry or have children but neglect to remake your will to include them, some states declare your will invalid and disburse your estate according to intestacy laws. Other states override your will to give your omitted family members an “elective share” and the balance of your estate to your other named beneficiaries. In either case, your spouse and children receive something.

Inheritance by Intestacy Laws

Dying “intestate” means that you have died without a will. When you die and leave no will, each state has a prescribed order of succession for your family members or heirs to inherit those assets you have left behind. In general, if you are married, your spouse receives your entire estate unless you also have children. If that is the case, your estate generally divides among your spouse and your children according to percentages set out in your state’s particular laws. If you are not married and have no children, your assets normally pass to your parents, and if your parents are deceased, they pass to your siblings. If you have no spouse, no children, your parents are deceased and you have no siblings, some states’ laws provide for more distant blood relatives to inherit. Anyone who gets your assets in this fashion is an heir.

Inheritance by Elective Share

An elective share is a percentage of your estate decided by your state’s laws. Your spouse can elect to receive this amount rather than what you left him in your will or if you left him nothing at all. If your spouse takes advantage of his right to an elective share of your estate, he is your heir.

Inheritance by Contest

In some cases, an adult child or more distant relative might believe she deserves a portion of your estate even if you did not put her in your will. Though it is generally very difficult to contest a will and win because the will must be proved legally invalid for some reason, anyone who does so is an heir. In most states, you must have standing to contest a will either because you are a relative or because you are a beneficiary who received less than you think you should have received.