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.

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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.

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Contesting a Probate Administrator


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Can an Estate Be Probated Without a Will?

Probate is the process by which courts distribute the property of someone who has died. An executor is appointed to oversee the deceased's property, known as the "estate." The executor pays off any debts and divides the rest of the estate between the beneficiaries, known as heirs when there is not a will. This is usually done according to the provisions of a will. When there is no will, the estate can still be probated. However, it is different from the traditional probate process. Probate rules vary from state to state, so make sure you are familiar with the rules in your state. If you need help with your state's probate process, consult with an attorney or a legal document service.

What to Expect in Tennessee Probate Court

When someone passes away owning property in Tennessee, the probate court is charged with supervising administration of the estate. The depth of the court's involvement will depend on the amount and type of property in the estate, and whether there are any objections raised by those who may inherit under a will or by intestacy laws. The process is highly legal in nature, and for all estates valued at over $25,000, Tennessee requires an attorney to open the probate process and to represent the person appointed to administer the estate. Estates valued at less than that amount and having no real property can take advantage of a streamlined procedure known as a small estate probate.

Administrator vs. Executor in a Probate

Executors and administrators have much of the same job. Each must guide a decedent's estate through the probate process, making sure his creditors receive notification of his death and payment of his debts, and ensure the estate's remaining assets pass to the decedent’s heirs or beneficiaries.The major difference between the two positions is in the way each receives appointment. Both are representatives of the estate and of the court. They’re duty-bound to act in the best interests of the decedent and to follow the letter of the law.

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