To heir is human: These are the individuals who inherit an estate if the deceased did not leave a will. Most people have one heir or another under the law. Since the names are not listed in a will, the administrator in charge of a California probate must make a diligent effort to identify and locate them.
If a person dies leaving a valid will, he is said to die testate. The persons named to inherit are called beneficiaries, and the executor named in the will is in charge of moving the estate through probate. If a person dies without a will, he dies intestate. In California, the probate court appoints an administrator to handle probate. One of the first jobs of the administrator is to identify and locate the deceased's heirs: his next of kin as described in the intestate succession statute. The law requires her to give written notice to each heir of the time and place of the initial probate hearing.
Read More: How to End Probate
California intestate succession law lists the relatives and the order in which they inherit. A surviving spouse or domestic partner is first on the list, followed by the decedent's children and then the decedents' parents. If these family members are dead, missing or nonexistent, the administrator must dig further into family history.
An administrator is in a fiduciary relationship with the heirs and owes them the highest duty of good faith and fair dealing in every task she undertakes, including attempting to locate and notify them of the probate. In addition, probate rules specifically require that the administrator make a reasonable and diligent search for heirs. Generally this requires an active effort on her part, sifting through the decedent's documents, questioning family and friends, sending letters to last known addresses, and making use of every available tool to locate heirs. Before probate closes, the administrator must write down her due diligence efforts in a declaration to the court, which is made under penalty of perjury.
Failure to Exercise Due Diligence
When an administrator fails to exercise due diligence in her attempts to locate heirs and some heirs come forward after the close of probate, California law requires that the probate case be reopened. Any person who received property that he was not actually entitled to under the will is said to have been unjustly enriched. The court can rule that the unjustly enriched person is holding that property in constructive trust for the rightful heirs, which means that he actually cannot use the property but must transfer it to the proper owners, the late-appearing heirs. A dishonest or willfully negligent administrator may also be subject to civil or criminal penalties.
- Creighton Law Offices: How Can an Heir at Law Recover Her Share of an Inheritance After the Close of the Probate of Her Relative’s Estate?
- California Courts: Probate Rules
- Superior Court of California: How to Probate a Decedent's Estate
- Caselaw: Pitzer v. Union Bank of California
- Cornell Law School: Unjust Enrichment
- Cornell Law School: Constructive Trust
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.