When we die, we leave behind what we own to be distributed among the living. There is very little we can take with us to the grave, let alone beyond it. And unlike the Egyptians, it has generally fallen out of style to be buried with one’s wealth.
But who gets what? And how?
For a large portion of Americans, those questions are largely answered by the last will and testament. This is the latest valid will that a person has authored, signed (in front of witnesses), and notarized before death. Wills can determine who gets what, who administrates the estate and probate process, and even who receives guardianship for minor dependents.
But what happens when there is no will or plan left behind? Who inherits? Who becomes the heir at law? That’s what intestacy law concerns itself with.
What is an Heir-at-Law?
An heir-at-law is any person inheriting after someone has died. Heirs at law include people written into wills, but it also includes those who stand to inherit when no plan or will exists.
Heirs at law are also called heirs-in-law. Why not just “heirs”? Because an important distinction must be made for the legal right to inherit. An heir-at-law is a de facto recipient of a portion of the decedent’s estate because of their legal claim.
Heirs at law have two important rights.
1. The Right to be Notified
When a person dies, an official document is created to reflect their death. This death certificate must be used to petition the beginning of the probate process, which legitimizes a will and sets into motion the distribution of the estate. Probate, in this case, refers to proving the will. In the absence of a will, probate is still necessary to oversee the proper distribution of the estate per intestacy law.
An important part of the probate process includes notifying all beneficiaries, or heirs at law. Heirs have a right to be notified that the process has begun and that they will receive a portion of the estate.
2. The Right to Challenge a Will
Another reason why heirs at law must be notified of the probate process is that it is the best place to openly challenge the legitimacy of a will. If a will exists, an heir-at-law can make the argument that it is illegitimate by presenting a newer copy, or by arguing that the last will was coerced. If a will tries to cut an heir out of a rightful inheritance (especially a surviving spouse), the probate process can be used to argue against that decision.
Identifying Your Heirs at Law
When there is no will to identify the heirs at law, it falls upon the shoulders of the state’s probate code and inheritance laws. So-called intestacy laws are responsible for the determining of beneficiaries in the absence of a will or other plan. Intestacy refers to being non-testated, or without testament.
Intestate succession differs from state to state, but it can be summarized as dividing the estate among the next of kin. Some states have different ways of defining next of kin and may split an estate in different ways.
For example, in some states, the surviving spouse gets half of the decedent’s assets while the children get the other half, while in other cases, the spouse only gets a third if there is more than one surviving child. For the most part, the heirs at law when a person dies and leaves behind no will go down the list of relatives in the following order:
- Surviving spouse
- Siblings’ children (nieces/nephews)
- Aunts and uncles
Heirs at law are very rarely declared past this point. This is to prevent a laughing heir, or a distant relative who inherits without having any personal connection to the decedent, simply due to kinship. Very few states do not have a laughing heir statute.
Protecting Your Intent
While you can define your heirs and even disown some of them, it can be difficult to alienate certain heirs.
A well-crafted estate plan can avoid such incidents by taking control over who gets what in a more deliberate fashion.
This is the one exception that can be hardest to get rid of – all states prohibit a married person from disowning their spouse. If your marriage sours and you leave everything to your children, your surviving spouse will be able to argue that they deserve a claim to your estate in probate court.
All a surviving spouse would have to do to receive their share is create a claim to bring up the omission of their share of the estate in the will.
So, how do you limit the inheritance of a person you are married to, but no longer love or live with? There are a few ways to potentially skirt the issue in some states, but you will have to face the fact that you cannot fully remove your spouse as an heir-at-law unless they explicitly sign away their rights as heir at law through a pre- or post-nuptial agreement.
The rights of heirs at law are not completely ironclad and can differ from state to state. Some states afford heirs greater rights than others.
The state of Georgia provides the fewest rights to surviving spouses, for example, while community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) guarantee that all of the decedent’s ownership in the community property is passed onto the spouse upon death (encompassing nearly everything obtained during marriage).
Only 21 states have adopted rights that allow a spouse to claim only a portion of a deceased spouse’s probate assets. This means that leaving nothing in probate can effectively cut a spouse out of their inheritance. This means distributing your entire estate through beneficiary designations and trusts. The 19 other non-community property states allow surviving spouses to choose partially or entirely from non-probate assets, however.
If you are worried about your estate, especially with regards to who gets what, and when, it is important to get in touch with an estate planning professional about creating a tailor-made estate plan.
Aside from basic will writing, a comprehensive estate plan can include provisions to simplify or even expedite the probate process, minimize the amount of property and assets passing through probate, and even reduce your estate’s tax liability.
Trusts are also a powerful tool, allowing you to fund property out and away from your estate to an independent party with a fiduciary obligation to you and your chosen beneficiaries.
Estates are malleable and entirely customizable. But creating a good estate plan takes experience and finesse. Estate plans are not just state-specific, they are case-specific. Be sure to get in touch with a specialized professional when discussing your estate plans.