By Dean D. Stein, CMA

There may be "Fifty Ways to Leave Your Lover", (thank you Paul Simon) but there are only two ways to leave this life, at least in probate terms, testate or intestate. Testate is the term used when the person who has died had a Last Will and Testament, or more simply referred to as a Will.  Not much to determining the heirs of a Will, they are all usually listed out by name, or sometimes by class membership, such as “my grandchildren”, but once we read it, we know who is to get what property. These individuals listed in the Will are not actually known as "heirs" but are "devisees" or "legatees", because they may or may not be blood related to the maker of the Will.

The more tricky determination of who are the rightful heirs, can come into play when a person has died, intestate, meaning, without a Will. When a person dies without a Will, then state law, usually referred to as "the law of intestacy" or "statute of descent and distribution" dictates who the rightful heirs are.  What is not always properly considered in determining the heirs, is the timing of deaths of the deceased person's (called decedent) next-of-kin, in relationship to when the decedent died, but it has to be examined, or the heirs may not be properly determined or ascertained. 

Before we go into determining the rightful heirs, here is a closely related topic. Many individuals have a problem with “State Law” determining to whom their property will go.  But consider this, the laws that determine where a decedent's property goes without a Will, are intended to approximate what most people, absent special circumstances, would do if they had prepared a Will before death.   For example, a man who is married and has two children, and dies without a Will, can reasonably have been expected to provide for his wife and children.  Further, if all the children are his and hers, it could be assumed that the mother will naturally provide for her children. Therefore, the wife will inherit a certain sum of money right off the top.  After that, the wife will split the balance of the estate with the children fifty-fifty.  Now, if these are minor children, those under age 19 in Alabama, this can cause other problems, and thus the enhanced benefit of having a Will, but you get the idea.  In our example above, the husband's mother, father, brothers and sisters, and favorite uncle, will not inherit anything, because it is presumed the decedent would not have provided for them in a Will, even if he had left a Will.

Now, back to determining the heirs when no will exists.  We have already looked at a simple example above, a husband or wife, who leaves the spouse and two children surviving, resulting in the surviving spouse and two children being heirs, or what we more specifically call “heirs-at-law”. But what about a more complex case, where no spouse and no children are left.  These cases can get quite complicated, and I have personally seen estates with more than 30 heirs-at-law. While I can't cover every aspect of how this works in this article, an example will best illustrate a more common scenario. Let's say a person dies, no Will, no spouse and no children.  Under the laws discussed above, we must first ask if their mother or father survived them.  If so, the parents of the decedent will inherit it all.  If the parents are deceased, we must ask if the decedent had brothers or sisters. If they did, the brothers and sisters will inherit it all, equally.  But what if the decedent had a brother, who lived for two months after the death of the decedent and then died "subsequently deceased" ?  They died before the estate was administered, so they just lose out right? Wrong. Because they died after the decedent, it is the estate of the deceased sibling that inherits that sibling's share.  The inheritance may then pass to whoever is determined to be the heirs of that now deceased sibling. So, you might ask, what happens if the sibling died before our decedent, then surely, only the surviving brothers and sisters get a share, right?  No. Again, the deceased sibling has a right to a share, or actually, his or her heirs-at-law do.  A different scenario then emerges with a “predeceased” sibling, where the children of the deceased sibling inherit, but it bypasses his estate, and so it would exclude a surviving spouse of the deceased sibling.  This is what I was referring to when I said the timing of the other deaths around the decedent matter.  Determining heirs can get very complicated, and should be well thought out by an attorney competent in that area of the law.  For those who had any doubt, having a Will can bypass yet another area of potential confusion and difficulty for those who survive.     

See also:

• How Does Being the Personal Representative Differ from Administrator?

• Finding A "Few" Heirs - A Case Study

This article is generally based on Alabama law, the law of your state can vary widely. This is not intended to constitute, nor should be taken by you as legal advice and is not intended and does not create an attorney/client relationship.

Dean Stein, CMA, is an attorney who has a Masters degree in business and is a Certified Management Accountant (CMA).