What if You Cannot Find Heirs in Succession?

By Beverly Bird

When someone dies without a will to bequeath his property, the law leaves little doubt about who receives the fruits of his lifetime’s labors. It goes to his next of kin, and there’s no room for creativity, compassion or need. Probate courts distribute according to degrees of kinship, with the decedent’s most closely related family members receiving first right.

Diligent Efforts

When someone dies without a will, the court appoints an administrator to guide the estate through the probate process. If assets remain after the administrator pays all the decedent’s debts and the estate's costs of operation, the administrator must then distribute them to the decedent's heirs. In most states, the order of succession is as follows: his surviving spouse, followed by his children, his grandchildren, his parents, his siblings, then his siblings' offspring. These relatives are usually easily identifiable. However, when all these individuals predecease the decedent, the executor may resort to hiring an “heir finder” to look for more distant kin. Most state laws include guidelines that must be met in the search for such relatives, and most require the administrator to submit a written report to the court explaining the efforts she made, either on her own or with the help of an heir finder.

“Laughing Heirs”

The term “laughing heir” is a euphemism for those relatives so far removed from the decedent, they won’t experience grief over his death. Some states allow these relatives to inherit anyway, when no one more closely related to the decedent remains alive or can be located. Other states draw the line at a specific level of kinship, such as grandchildren -- by law, no one more distantly related can inherit.

Protect your loved ones. Start My Estate Plan

Escheat Laws

Cutting off intestate succession at a specific degree of kinship can be lucrative for the decedent’s state government. When the administrator of an estate cannot locate any eligible kin, the decedent’s estate “escheats.” It goes to the state for lack of anyone else to claim it. For example, if the administrator successfully locates a cousin who could inherit, and if state law limits intestate succession at grandchildren, the decedent’s estate goes to his government, not his relative. However, this doesn’t usually occur automatically. The administrator and the state must follow legal procedure, which usually includes a court hearing. At the hearing, the burden of proof often falls to the state to prove that no heirs exist. If the state is successful, the court orders the administrator to liquidate the estate by selling assets such as real estate. The administrator then usually sends the money to the state’s treasury.

Claiming Escheat Property

In most jurisdictions, even after a decedent’s estate escheats to the state, a period of time exists during which eligible heirs can still come forward to claim it. For example, in Oregon and Kansas, heirs have 10 years to realize that they have inheritance rights and to make a claim for the money. This usually involves a court hearing as well, and the burden of proof shifts to the heir to prove his relationship.

Protect your loved ones. Start My Estate Plan
Can an Heir Be Deleted From a Property Inheritance?


Related articles

What Is the Legal Procedure After the Death of a Person Who Doesn't Leave a Will?

Less than half of Americans -- only 35 percent – had wills as of 2010, according to Forbes.com. Unsurprisingly, states must implement laws to address the estates of those who do not. These people are said to have died “intestate,” but their property must usually still pass through probate to transfer title to heirs. Someone must also pay the decedent’s debts, and probate takes care of this also. Probate without a will is very similar to probate with one, but it usually involves a little more court supervision.

The Inheritance Hierarchy Without a Will in New York State

A person who dies without leaving a will is said to have died “intestate.” New York courts distribute intestate property according to a statutory scheme of succession and these laws apply only to property located in the state of New York. Laws of other states may apply to real property located outside of New York, even if the decedent had been a legal resident of the state. The intent of New York's intestate succession law is to distribute the estate in the manner in which the decedent likely would have had she left a will; the statutory scheme distributes the decedent's property to the closest surviving relatives first.

Probate Laws on the Next of Kin

When someone dies without a will, state laws -- the so-called "laws of intestate succession" -- determine who inherits the estate. If the deceased left a surviving spouse or children, these people are considered "next of kin" and generally inherit the entire estate. Although state laws vary, there is a common descent and distribution scheme that applies to determine who is next of kin -- that is, next in line to inherit -- if there is no surviving spouse or children.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Contesting a Probate Administrator

Dying without a will can leave your heirs unhappy in more ways than one. When an individual dies intestate, the court ...

Probate Laws for No Will in the State of Maine

Maine probate courts oversee the distribution of decedents' estates to their heirs. When a person dies without a will, ...

Mississippi Estate Inheritance Laws

If a Mississippi resident fails to make arrangements for the division of his property by making a will, his property ...

What If an Heir Dies?

The impact of an heir’s death on the probate process depends a great deal on whether he is also a beneficiary. An heir ...

Browse by category
Ready to Begin? GET STARTED