An heir is one who stands to inherit from a person after that person dies. What rights an heir has to any inheritance are governed by the probate laws of the state in which the decedent lived. Probate laws differ significantly between states; consult a qualified probate attorney in your area if you need legal advice about your rights as an heir or beneficiary. An heir is entitled to receive property from a decedent’s intestate estate. When a person dies, all the property the person left behind is referred to as the estate. An intestate estate is one in which the decedent did not leave behind a valid last will and testament. If the decedent doesn’t leave behind a will, state law determines who inherits property regardless of the decedent’s desires.
If a person dies without a will, her heirs inherit the estate. However, the manner in which this happens differs between states and is based on the relationship of the heir with the decedent.
For example, in Utah, a decedent’s spouse inherits the entire estate if the decedent left no children, or if all the children are descendants of both the decedent and surviving spouse. If a decedent leaves behind a valid will, the intestate succession laws no longer govern who receives property. Instead, the will determines who the heirs are. In general, a person can choose to give away his properties to anyone he wants and can choose to disinherit children or relatives. One exception to this rule is the spouse’s elective share. An elective share is a percentage of the estate a spouse is automatically entitled to regardless of whether the decedent included her in the will. This effectively means a person cannot disinherit a spouse. An heir is commonly thought of as someone who receives money or property from a person who has died. Technically, heirs are the next of kin and are the people who would benefit if the person died without leaving a will. The succession of heirs is based on direct descendants, such as children or grandchildren. Other relatives, such as sisters and brothers, or aunts, uncles, nieces, nephews, and cousins, are called collateral heirs. A beneficiary is a person or an organization, such as a charity, named to receive assets from an estate.
Heirs aren’t necessarily beneficiaries of a deceased person’s estate unless they are named in the will. For example, a child who would naturally be an heir could be accidentally omitted from a will or deliberately disinherited. An inadvertent admission can be challenged by a descendant claiming to be an heir.
The Rights of Heirs-at-Law
An heir-at-law is anyone who’s entitled to inherit from someone who dies without leaving a last will and testament or other estate plans. This status can be an important factor not only in settling an estate but in determining who might be entitled to challenge or contest a will when the deceased does leave one.
Who Is an Heir-at-Law?
When a decedent does leave a will but glaringly omits someone who would have inherited if he had died intestate, this individual has standing to challenge or contest the will in court. Not just anyone can do this standing means the individual has some financial stake in the estate. This might be the case if the deceased left his entire estate to one child and omitted mention of his other child entirely in his will an heir-in-law would qualify. Status as an heir-in-law does not necessarily mean that a lawsuit to overturn the will would be successful. The heir-at-law would also have to establish that the deceased didn’t intentionally omit him from the will, disowning him. An heir-in-law isn’t automatically entitled to inherit when there’s a will that doesn’t mention him, but only if the decedent had died without any will at all. A surviving spouse is an exception to this rule. All states but not all prohibit a married individual from disowning his spouse and they have laws in place to make sure she receives her fair share of his estate. She’s always an heir-at-law, but she would not have to contest the will to claim her share. She would have to bring the omission to the attention of the probate court, however, usually by filing a claim. Exactly who qualifies as an heir-at-law can depend on where the decedent died and what he owned. The rules are established individually by each state so they can differ a little. Most states’ laws are very similar, however. Heirs-at-law and their rights to inherit are typically decided in an order called “intestate succession.” The more closely related you are to a decedent, the more likely it becomes that you are an heir-at-law.
Other Relatives —”Collateral Heirs”
The deceased’s parents, siblings, grandparents and other next of kin would inherit only if he left no surviving spouse, children or grandchildren. Intestate succession usually occurs in that order. These people are considered “collateral heirs” because they would only inherit if no more immediate relatives are living. When it appears that someone has died without any known heirs-at-law, some states require that a special notice be run in the newspaper, alerting individuals to come forward if they believe they are related to the decedent. These people can then file requests with the court for determinations of heir-ship which would give them a legal right to inherit. Some companies specialize in searching out and identifying next of kin and heirs-at-law, and sometimes a simple review of the decedent’s personal paperwork can impart clues. If no heirs-at-law can be identified, the decedent’s estate would typically escheat to the state. In other words, the state would receive his property.
Beneficiary
A beneficiary is a person or organization who receives money or property because someone specifically names them in their Will or trust. Beneficiaries can include charities, places of worship, a decedent’s close friend or even his pet cat. If you are specifically named in a Will, you are considered a beneficiary. You can be a beneficiary who is also an heir, but not all heirs are beneficiaries. A beneficiary has the right to receive the share he got under the will in a timely manner and to receive written notice of the probate proceedings. How long it takes the executor to settle an estate depends on various factors, including the estate’s size and what type of property the decedent owned. For example, if the decedent owned real estate and the property must be sold, the executor has to put the property up for sale, find a buyer and close the deal. In this case, the beneficiaries may have to wait months before receiving the sale proceeds. Will beneficiaries are entitled to information about the estate, including the property the decedent owned and the property’s values and his debt.
A beneficiary may ask the executor for an account of what he’s done on behalf of the estate. An account should be in writing, and the executor is expected to provide supporting papers, such as receipts or canceled checks for payments, proof of asset transfers and statements from any estate bank accounts. The supporting papers must match up with the information on the account the executor provides. The will beneficiaries are entitled to an executor who performs his duties fully and honestly.
An executor must not act in a way that harms the estate. He cannot favor one beneficiary over another, behave in a dishonest or illegal manner or fail to live up to his legal obligations. A will beneficiary may petition the court if she believes the executor isn’t performing his duties properly, but she must have proof to support her complaint. For example, if she believes the executor is taking money from the estate to cover personal expenses, she’ll need financial statements that back up this allegation. If the court agrees with the beneficiary, the court may remove the executor and revoke his authority.
Beneficiaries have the right to approve or deny the level of compensation an executor requests for his services. Not all executors are paid; a relative may act as executor and waive compensation. If the court granted an executor’s compensation request before the estate is settled without the beneficiaries’ approval, the beneficiaries may challenge the amount later. If the court finds the executor received an excessive amount of compensation, the executor may have to pay the beneficiaries back with interest.
Rights of Heirs & Beneficiaries
Beneficiaries are entitled to:
• Information about the estate, including the property the decedent owned and the property’s values and the decedent’s debt. Such information is normally furnished on an inventory.
• See a copy of the will itself. (The original is normally filed with the court after death.)
• Ask the personal representative for an account of what he or she has done on behalf of the estate. An account should be in writing, and the personal representative generally must provide supporting documentation if requested to do so.
A personal representative must put the interests of the estate in front of the personal representative’s own interests and must act with the utmost honesty. Beneficiaries have the right to be treated fairly and equally. The personal representative may not favor one beneficiary over another. Technically there is no time limit for closing an estate. It may take some time before a personal representative distributes property to the beneficiaries depending on the complexity of the asset holdings, the number of creditors, and whether there are any taxes due. Nonetheless, a personal representative who delays distribution of estate assets without a good reason is not fulfilling his or her duty.
The most important reason to understand the difference between an heir and a beneficiary is that it illustrates the need to plan an estate and ensure that property is passed to the decedent’s desired individuals. Assets that are incorrectly addressed or not addressed at all may be given to heirs, rather than beneficiaries. This often occurs when an estate owner does not correctly plan their estate by creating a legal Trust with the help of qualified probate court attorneys who help decedents leave their property subject to a Will that will go through the probate process. Attorneys knowledgeable in probate law advice that documenting and assigning assets through a Last Will and Testament or legal Trust, allow a person to know that their assets will be distributed as they designate. Each document has its own benefits; using them together can be beneficial because it in many cases provides the best asset protection for an individual. For those leaving property to specific individuals, organizations, or anyone other than direct family members, a Trust should be considered for assigning such beneficiaries as recipients. By setting up a Trust, where beneficiaries are assigned as partial trustees before the estate owner passes, probate can be avoided. Trusts are powerful documents, giving estate owners the most control over asset distribution upon their death, without involving the courts in these sensitive and emotional decisions.
Prudent estate planning with knowledgeable attorneys can begin at any time; experienced wills and probate lawyers suggest this is something that should begin as early as possible. Differentiating beneficiaries from heirs to be sure they receive assets designated for them is something very important in probate law and requires careful consideration with the help of probate attorneys.
The part of a deceased person’s estate that is given to an heir is known as an inheritance. This can involve cash, stocks, bonds, real estate and other personal property such as automobiles, furniture and jewelry. There are many specific types of heir, such an heir apparent, the person supposed or expected to receive an inheritance; a presumptive heir, someone who’d get an inheritance unless a child was born to the property owner first; adoptive heir, a legally adopted child who has the same rights as natural child of the parents; a collateral heir, a relative who isn’t a direct descendant but is a family member.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
