How to Determine Who Is an Heir

By Jennifer Kiesewetter, J.D.

How to Determine Who Is an Heir

By Jennifer Kiesewetter, J.D.

In estate planning, an heir is a person entitled to inherit a portion of or all of your property when you die when your will doesn't cover a specific asset or when no will exists. Interstate succession laws, which are individually governed by each state, determine who an heir is. A beneficiary, on the other hand, is a person identified in a will or estate plan as the legal recipient of specific property upon your death.

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If individual pieces of property aren't addressed in a will, or if no will exists, then your wishes may not be honored upon your death. For example, if you don't assign a beneficiary to specific assets in your estate, those assets could be attributed to an heir determined by your state laws as opposed to a family member of your choosing. An estate attorney can help you create an estate plan, honoring your wishes.

Here's how to determine who is an heir:

1. Learn which state law applies.

Each state has its laws of intestacy. Generally, the intestacy laws of the state where you reside determine the division of your property upon your death when no will is in place.

If you own any real estate in a state or states outside of your residency state, then those states' intestacy rules will govern the division of your property upon your death. Depending on your estate, the applicable laws can become complicated.

2. Figure out the heirs eligible to inherit.

Not only do intestate succession laws vary between states, they also differ depending on whether—at death—you are single, married, or have children. This impacts how the court will distribute your assets.

For example, intestate succession represents the order in which your heirs inherit according to your status at death. Surviving spouses typically receive at least one-half of the estate and all of the estate if there are no living children or grandchildren. However, spouses and children, or grandchildren, typically share in the estate.

3. Decide if any collateral heirs inherit.

If no surviving spouse, children, or grandchildren are living at your death, or otherwise exist, then your assets would pass to collateral heirs. Collateral heirs include your parents, siblings, and grandparents along with any other next of kin such as aunts, uncles, nieces, nephews, and cousins.

You'll want to check your state law as some states may permit your parents to share the estate with your surviving spouse if no other relatives are alive. However, generally, collateral heirs only inherit the estate if no other immediate relatives exist.

4. Find any unknown heirs.

If you die without any known heirs, some state requires that the probate court run a notice in the newspaper or that the probate court perform a search for any person related to you and can rightfully inherit your estate.

If you die with no heirs, then your estate escheats, or is transferred, to the state of your residency, or the state where your real property is located.

You may have questions about leaving property to an heir or a beneficiary. You may also have questions about how to create a will or an estate plan. If you do, you should consult with an attorney or use an online service provider for assistance or guidance. By seeking legal advice, you can assure yourself that you've protected your estate, and your family, in the case of your death.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.