When someone leaves a will, he can bequeath his property to anyone he chooses. With the exception of his spouse in some jurisdictions, he can also omit or disinherit anyone he likes. Heirs have far more rights when a loved one dies intestate, or without a will. In this case, a statutory code takes over, determining who inherits his property. Depending on how closely related an heir is to the deceased, it might be impossible to “delete” him.
Heirs as Beneficiaries
Heirs are individuals related by blood to the decedent. If the decedent has died intestate, the probate court distributes his possessions to his heirs in a prescribed order called “intestate succession.” If he does leave a will, the individuals he bequeaths his property to are known as his “beneficiaries.” Therefore, if he leaves his property to his next of kin, these heirs are also his beneficiaries.
A decedent can intentionally delete many of his heirs and prevent them from inheriting under the terms of his will. However, most state laws protect surviving spouses from disinheritance. If a decedent deletes his spouse from his will, she can typically take an elective or statutory share of his estate instead. She can reject the terms of his will and accept a portion of his estate in lieu of abiding by his last wishes to leave her nothing. The size of the portion depends on state law. A decedent usually cannot disinherit his young children, either; they’re entitled to support from his estate until they reach the age of majority. However, most states allow a decedent to disinherit or delete his grown children from his will. More distant heirs, such as siblings, parents, nieces and nephews, usually have little chance of inheriting if they’re not written into a will as beneficiaries.
When a decedent dies without a will, the intestacy laws in most states award at least half his estate to his surviving spouse. If he has no children, or if his children are also the children of his spouse, she may inherit everything. In this case, the fact that he did not leave a will prevents all other potential heirs from inheriting. If the decedent did leave children, and if one or more are not also the children of his spouse, she usually inherits half of his estate, and his children share the other half. It would be impossible to delete these heirs if the decedent did not leave a will. Other potential heirs, such as parents and siblings, would have no opportunity to inherit if the decedent left a living spouse or children. His estate would revert to these relatives only if no spouse or children were alive to inherit.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
When a closely related heir, such as an adult son or daughter, does not inherit under the terms of a loved one’s will, she may be able to contest or challenge it. First, she must usually prove her relationship to the decedent and that she would have inherited something if he had died intestate. Then she must prove that the decedent erroneously deleted her from the will. State laws vary regarding the grounds for will contests, but the heir must generally convince the court that someone else, usually another heir, coerced the decedent into leaving her out of the will. She might also be able to prove that the decedent was mentally incompetent at the time he made it. Will contests are complicated legal procedures, so if you’re an omitted heir, consult with an attorney to determine your odds of success.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.