How Are Heirs Determined?

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A person preparing a will must name at least one heir --- a person to receive money and property from his estate. If a person dies without leaving a will, he is said to have died "intestate." In that case, the court appoints an administrator, and the deceased's property must go through a process called probate before it can be distributed to the heirs. State laws vary about how heirs are determined and how the property is distributed. Each state has a statute covering intestate succession.


A spouse is the person to whom the deceased person was married at the time of death and is thus an heir of the intestate decedent. If a common-law marriage, in which the partners have lived together as a married couple, is recognized, the surviving spouse may be considered an heir. The common-law spouse must prove that she meets the legal requirements to be recognized as a spouse and heir. If the intestate deceased left no spouse, the estate would in most cases be divided equally among any surviving children.


The children of the deceased may be natural born or may be adopted. The adopted child has the same rights as a natural born child. The laws in all states allow an adopted person to inherit from birth or adoptive parents. If the parent had left a will, he could have chosen not to leave property to any of his children, but if he dies intestate -- without a will -- the adopted child will inherit. An adopted child may also inherit from her birth parents. An illegitimate child can inherit property and may have a claim as an heir to an intestate decedent.


If there are neither spouse nor children, the next in line to inherit are the deceased person's grandchildren and great grandchildren. After that, in most cases, his heirs are his parents, if they are living, with the estate to be divided equally between them. Next in line are the deceased's siblings, again with the estate divided equally.


In order to decide on the claims of the heirs of an intestate decedent, a determination must be made by the court. At a hearing, a judge hears evidence identifying the heirs and their shares of the decedent's estate. An attorney appointed by the court represents the interests of unknown heirs, known heirs who can't be found, minors and heirs suffering from disability.


About the Author

As a long-time newspaper reporter and staff writer, Kay Bosworth covered real estate development and business for publications in northern New Jersey. Her extensive career included serving as editor of a business education magazine for the McGraw-Hill Book Company. The Kentucky native earned a BA from Transylvania University in Lexington.

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