Do you know who is considered an heir to an estate? Do you believe you’re an heir, or will be in the near future? If so, do you understand your rights as an heir?
The legal heirs of deceased persons usually are entitled to inheritances when a decedent dies without a will or trust (i.e., they die intestate), but regardless of whether they stand to inherit, they will always have certain rights during trust and estate administration.
If you’re an heir, it’s crucial you familiarize yourself with your heir rights to ensure you are equipped to enforce them should the need arise. For example, if you’re an heir who was told you will receive an inheritance, but the will doesn’t mention you, and you think it’s because the testator (the creator of the will) had been unduly influenced to change it, you may have the right to contest the will.
Knowing your rights as an heir can help ensure you receive your rightful inheritance from a deceased loved one’s estate or trust. Learn what an heir is and who the heirs to an estate without a will are from the following sections.
What Is an Heir-at-Law?
When someone dies without a will or trust, their assets generally will be distributed among their closest relatives, known as heirs-at-law or legal heirs. The process by which the intestate estate of a decedent is distributed is called intestate succession.
While intestate succession laws usually govern the disposition of a decedent’s assets when they die without a will or trust, they also can play a role in the disposition of decedent’s assets when their will or trust is successfully contested.
In some instances, if a will or trust is successfully contested, an older version of the will or trust could be used instead of intestate succession. But if there is no prior version of the will or trust, heirs likely will inherit the decedent’s assets through intestate succession. The laws of intestate succession are detailed under California Probate Code sections 6400-6455. You may be wondering: who are the heirs to an estate without a will? Continue reading to find out.
What Types of Heirs Are There?
There are different types of heirs who may stand to inherit from a decedent’s estate. Learn about the three main categories of heirs in the following sections.
Direct Heir
A direct heir (also known as an heir apparent or lineal heir) is who would be considered the decedent’s next of kin, and they are first in line to inherit through intestate succession.
If the decedent had been married when they died, their direct heir most likely would be their surviving spouse. The next heirs in line to inherit generally would be their children and grandchildren.
Collateral Heir
A collateral heir is someone who isn’t in the direct line of succession, such as a sibling, parent, niece or nephew, uncle or aunt, or cousin.
According to the intestate succession laws of California, if no direct heirs are alive, or if they refuse their inheritances, estate assets will go to the collateral heirs.
If direct heirs are missing or cannot be located, but they are alive, the administrator will have to work diligently to track them down. If five years have passed since the decedent’s death, and nobody has seen or heard from the heir, the administrator may be able to file a petition to have the heirs declared deceased. If their claim is successful, they likely would be permitted to reroute the inheritances of the direct heirs to the collateral heirs.
Adoptive Heir
An adoptive heir is an adopted child who may be in the line of succession to inherit a decedent’s assets. Once a child has been adopted, they enjoy the same inheritance rights as biological children. One point of confusion that may arise involves stepchildren and whether they can inherit through intestate succession.
Usually, stepchildren won’t have intestacy rights unless their stepparent legally adopts them. That said, you may be surprised to learn that there are circumstances under which stepchildren may have priority intestacy rights over other heirs.
If you are an adoptive heir or stepchild of a decedent who is confused about your inheritance rights under intestate succession, a probate attorney may be able to provide clarification.
Who Are the Legal Heirs of a Deceased Person?
Just because you were a close family member of the decedent, it doesn’t mean you’ll be considered their legal heir in the eyes of the law.
Probate Code sections 6401 and 6402 lay out a specific order of succession that must be followed when any part of a decedent’s estate is not being disposed of by will.
If the decedent has a surviving spouse and/or children, they generally will be the ones to inherit by means of intestate succession. If they did not have a surviving spouse or children, their grandchildren, parents, siblings, and nieces and nephews could stand to inherit their assets.
You can get a better idea of who will inherit under intestate succession and how much they will inherit by looking at Keystone’s intestate succession chart.
Surviving Spouse
In the hierarchy of heirs, the decedent’s surviving spouse generally gets top priority when it comes to inheriting the decedent’s assets through intestate succession.
That said, their surviving spouse may be entitled to 50% of the marital assets (called community property), even if the decedent died with a will or trust, regardless of whether the spouse is named in the document. This is because the surviving spouse legally owns 50% of all property acquired over the course of a marriage. If the decedent disposed of more than their share of the community property without obtaining their spouse’s written consent to, the resulting transfer of property could potentially be invalidated by the court.
While a spouse may only receive 50% of the community property when their spouse dies with a will or trust, they will receive all the community property under intestate succession. They also generally will receive a portion of their spouse’s sole and separate property, with the exact percentage being determined by a probate formula that takes into account the decedent’s other living heirs. If the decedent died with a will or trust, their surviving spouse may not receive any of their separate property.
If you are a surviving spouse, and the estate of your deceased spouse is not complex, you may be able to bypass a formal probate by utilizing simplified probate procedures, such as spousal property petitions. These can save time and money for the estate, potentially resulting in a larger inheritances for the heirs. Surviving spouses have other unique rights as well, including the ability to petition for a family allowance if they or their children (even adult children) had been financially dependent on the decedent when they died. Because estate administration can take up to a year or longer, it can be a while before heirs and/or beneficiaries see their inheritances. A family allowance can help the decedent’s family make ends meet while administration is ongoing.
If you are a surviving spouse, navigating estate administration and your rights during it can be a challenge, especially if you are still grieving your loss. A probate attorney can streamline the process for you by taking on the responsibility of enforcing your rights and helping you to obtain your rightful inheritance.
Children
With some exceptions, the children of a decedent generally are not entitled to an inheritance if the decedent died with a valid will or trust, unless they were named in it. However, with intestate succession, the children of a decedent generally are entitled to a portion of the decedent’s separate property and possibly even the entirety of their community property if their spouse predeceased them.
The exact percentage of separate and community property they’ll receive will be determined by a probate formula that takes into account the other living heirs.
Other Relatives
If someone dies with no spouse, children or grandchildren, their other relatives could be next in line to inherit their assets through intestate succession. The order of succession when no spouse, children or grandchildren are present is as follows:
- Parents
- Siblings
- Nieces and nephews
- Grandparents
- Uncles and aunts
- Cousins
Escheatment
If the administrator of the estate cannot locate any heirs, the decedent’s assets could go to the state in a process called escheatment. This, however, will not happen right away. Before escheatment occurs, the administrator will need to exercise all their options for locating the missing heirs. Only if the heirs cannot be located after five or more years could escheatment take place.
If you’re an heir who lost your inheritance to escheatment, it may be possible to recover it. Consult with a probate attorney for more information on how to initiate this process.
Is an Heir the Same as a Beneficiary?
A beneficiary is someone who was specifically designated in the decedent’s estate planning documents to inherit their assets. On the other hand, an heir is a relative of the decedent who may stand to inherit the decedent’s assets through intestate succession.
Can an Heir Also Be a Beneficiary?
An heir can be a beneficiary, and vice versa, but they don’t have to be. During administration, both of these groups share similar rights, but these terms are different from each other and generally cannot be used interchangeably.
Consider the following examples:
- A decedent could have included terms in their will or trust that reference their heirs (e.g., “my primary residence should be distributed in equal shares to my direct heirs”).
- A beneficiary who is a direct heir of the decedent could successfully contest their will or trust, causing them to receive a larger inheritance under intestate succession.
A beneficiary could be the decedent’s child, who also would have heir rights under intestate succession.
What Are the Rights of Heirs to an Estate?
As an heir, you have certain rights during administration. This is to ensure you receive your rightful inheritance from the decedent’s estate, whether the decedent died with or without a will. Learn more about the rights of heirs to an estate from the following sections.
Can an Heir Be Administrator of an Estate?
If you’re an heir, you may be wondering how to become administrator of an estate.
While heirs generally have priority to serve as administrator, there is an order of priority detailed in Probate Code section 8461 that must be followed.
Who is given priority to serve as administrator? First priority is given to the decedent’s surviving spouse or registered domestic partner. Next in line are the decedent’s children, grandchildren and so forth.
When a person with priority refuses their appointment, the court generally will ask the next person in line whether they’d be willing to serve.
Keep in mind that even if you have priority to be appointed administrator, you will have to meet the legal requirements for serving as administrator of the estate.
Do Heirs Have to Be Notified?
It’s the responsibility of the personal representative of a decedent’s estate to notify all legal heirs about the opening of probate. They must do this by mailing notices to them at least 15 days prior to the initial probate proceeding.
At a minimum, these notices must inform heirs of:
- The decedent’s death
- The date, time and location of the initial probate proceeding
- The name and contact information of the personal representative
- Their right to object to the petition prior to the hearing date
If the decedent had a trust, heirs should be mailed notices about the start of trust administration by the successor trustee of the decedent’s trust.
Can an Heir Object to Probate?
What if an heir will not sign the form for probate?
A legal heir generally has the right to appear in court at the initial probate hearing to object to the will’s admission into probate. They, however, must have a valid reason for their objection. Valid reasons can include everything from their having knowledge of a more recent version of the will to their believing the decedent had been subject to elder financial abuse, which resulted in them changing their will.
If the court agrees with the heir’s objection, it could order for the decedent’s assets to be distributed via intestate succession or via a prior version of the decedent’s will (if one exists).
Do Heirs Have a Right to See the Will or Trust?
Heirs have a right to receive a copy of the decedent’s will if one exists. The personal representative of the decedent’s estate generally is responsible for providing them with a copy. If they fail to fulfill this responsibility, heirs can always visit the county clerk’s office to obtain a copy, since wills generally are lodged with the court.
A decedent’s trust, on the other hand, is usually not lodged with the court, which means it could be more difficult for heirs to track down. While it is one of a trustee’s responsibilities to provide heirs with a copy of the trust, heirs may need to be proactive about obtaining it. A probate attorney can always help with this process.
Can Heirs Contest a Will or Trust?
An heir generally has the right to contest a will or trust as long as they have standing (i.e., a financial stake in the outcome of the matter) and their reason for the will or trust dispute meets one or more of the grounds for contesting a will or trust.
This means an heir can claim undue influence, fraud, a lack of mental capacity or another suspect circumstance was involved in the creation or execution of a will or trust, which resulted in the will or trust not accurately reflecting the decedent’s true intentions. The heir will need to be prepared to support their claim with evidence.
As previously touched on, there are deadlines for will and trust contests. In other words, they can be time-barred if filed late. This is why it’s crucial you not delay taking action if you plan to contest a trust or will.
Because of the complexity of will and trust contests, working with an attorney during the process is recommended.
Can Heirs See Accountings?
Heirs have the right to view estate and trust accountings that detail the debts, transactions and assets of an estate. These accountings are generally provided by the administrator if there is no will, by the executor when there is a will or by the trustee when there is a trust.
If heirs notice red flags in the accountings provided to them, they generally have the right to challenge the accountings in court. If heirs don’t receive the required accountings, they generally have a right to petition the court to compel the personal representative or trustee to provide accountings.
Can Heirs Request Information from The Executor/Administrator or Trustee?
It is the fiduciary duty of personal representatives and trustees to keep heirs reasonably informed about the estate. Heirs have the right to request information at any time, and the estate or trust representative must respond in a timely manner.
One caveat to this rule is that personal representatives and trustees do not have to provide information that is confidential, irrelevant to the estate or excessively difficult to obtain.
Can an Heir Refuse an Inheritance?
An heir has the right to renounce their inheritance for any reason. This is called disclaiming an inheritance. If an heir disclaims their inheritance, it will go to the next heir in line, as per intestate succession laws. Common reasons why an heir may refuse an inheritance include:
- Minimizing taxes
- Avoiding creditors
- Prioritizing other heirs
How Long Does an Heir Have to Claim Their Inheritance?
Heirs generally will not be able to receive their inheritances until all valid creditor claims have been satisfied and estate or trust administration has concluded.
Whether an heir or beneficiary is inheriting through a will or intestate succession, they’ll be at the mercy of the probate process, which, on average, can take anywhere from six months to two years or longer. The length of the probate process largely depends on the complexity of the estate.
How Can an Attorney Help a Rightful Heir?
For heirs who have questions about their inheritance rights and rights during administration, a probate attorney can be extremely helpful. Discover how an attorney can help in the following sections.
An Attorney Can Help You Understand Your Rights as an Heir
Whether you’re being forced to wait longer than necessary for information about the estate, or you’re unsure how to interpret an accounting, an attorney can help you get to the bottom of the issues you’re facing.
If there’s something you don’t understand about intestate succession, for example, an attorney can explain the process to you.
An Attorney Can Help You Contest a Will or Trust
If you are suspicious about the validity of a decedent’s will or trust, an attorney can help you decide whether you should pursue a will or trust contest. If you decide to move forward with a will or trust contest, a probate attorney can take all the guesswork out of it.
An Attorney Can Help Enforce Your Rights During Administration
To ensure your inheritance rights are upheld, it is necessary to play an active role during administration. Given that you probably have other responsibilities, this can be difficult to do without help from an attorney.
An attorney can assist you with securing and inspecting accountings, obtaining information about the estate or trust, and enforcing your rights at every stage of the administration process.
It can be difficult to prompt an administrator, executor or trustee into action. However, an attorney can light a fire under them to make them carry out their fiduciary duties to you. If they fail to carry out their fiduciary duties, your attorney can help you file a fiduciary misconduct claim to potentially have them removed and/or surcharged.
FAQs About Inheritance Rights of Heirs
Have other questions related to the rights of heirs to an estate? Feel free to review our FAQs section to learn more.
What is a false affidavit of heirship?
An heir may file an affidavit of heirship to identify themselves as heirs so a decedent’s assets potentially can be transferred to them without a formal probate. For an affidavit of heirship to be used, the decedent’s estate must be worth $184,500 or less.
When someone intentionally includes incorrect information in an affidavit of heirship, it is considered a false affidavit of heirship, which can result in penalties for the liable party.
Who are the legal heirs of a deceased unmarried person?
According to the intestate succession laws of California, the legal heirs for someone who dies without a spouse are as follows:
- Children
- Parents
- Siblings
- Nieces/Nephews
- Grandparents
- Uncles/Aunts
- Cousins
- Escheated to the state
Are grandchildren legal heirs?
What Are stepchildren considered heirs?are my responsibilities as a guardian?
Generally, the only way stepchildren become heirs is when they’re legally adopted. If adopted, stepchildren will have the same inheritance rights as their biological counterparts.
One circumstance under which stepchildren may be able to inherit is if their stepparent dies with a predeceased spouse and no children of their own. In that situation, the children of the predeceased spouse may have priority intestacy rights over other heirs.
Can timeshare estates be passed down to heirs?
A timeshare estate can be a controversial asset to leave to an heir. This is because the heir not only will inherit the property, but the policies and payment obligations that come with it.
While some heirs may accept a timeshare, others may wish to disclaim this portion of their inheritance or sell the timeshare to avoid the property's obligations
Can you leave lottery winnings to your heirs?
Lottery winnings generally can be left to heirs via a will or trust, or through intestate succession.
If payments were still being made to the lottery winner at the time of their death, the personal representative of their estate may need to get in touch with the Lottery's Prize Payments Annuity Desk to initiate the process of transitioning payments to the decedent’s heirs or beneficiaries.
Can heirs inherit debt?
Whether an heir can inherit a decedent’s debts depends on their relation to the decedent. A surviving spouse, for example, generally can inherit their spouse’s debt, since debt tends to be equally shared by spouses in community property states like California.
That said, if a decedent had debts when they died, they likely will be paid by the personal representative of their estate during administration.
Do heirs pay taxes on inheritances?
Heirs generally are not required to pay taxes on their inheritance in California, since inheritances are not regarded as income.
However, if an heir’s inheritance produces additional income (e.g., by being invested in stocks and bonds), taxes will need to be paid on the gains earned.
Can an ex-spouse be an heir to her ex-husband’s estate?
Once a divorce is finalized and assets have been split between the two parties, an ex-spouse will lose any rights they had to inherit their former spouse’s assets.
Ex-spouses are not considered legal heirs; therefore, they have no right to inherit under intestate succession.
Note that an ex-spouse shouldn’t be confused with an omitted spouse, who generally is a spouse who was excluded from an estate plan because it was executed by the decedent prior to their marriage.
Contact Keystone with your questions surrounding the rights of heirs to an estate.
If you have questions about your rights as an heir, or need help enforcing them, feel free to contact our experienced probate attorneys.
Our experienced attorneys exclusively practice in probate law and can give you the edge you need to achieve a favorable outcome in your case.
Contact Keystone today to request a free consultation.
