Who Are Heirs to a Last Will & Testament?

By Beverly Bird

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.

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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.

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The Rules of Inheritance


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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.

Wills in Virginia

Writing a will allows you to decide before your death who is going to get your assets, who is going to oversee the process of transferring them to those people and who will be the guardian of your minor children after your death, if you have any. To a great extent, you take the power of these decisions away from the court. Laws regarding wills vary from state to state. Title 64.1 of the Code of Virginia lists the state's requirements and provisions for wills and estate matters.

Can I Keep My Assets Separate From My Wife in a Will?

When you undertake estate planning, you may not want to transfer assets to your wife. The degree to which you may want to deny assets to your wife upon your death may vary. You may only want to keep certain assets from your wife so that your children receive them because those goods mean more to them. On the other hand, you may not want to leave your wife anything at all. If you are married at the time of your death, your wife generally has a right to a portion of your estate. You can leave specific assets to other beneficiaries. The degree to which you can keep your wife from inheriting your assets depends on the state in which you live.

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