A person may inherit property when someone related him dies without deciding who will take the property. In the typical inheritance situation, a court must decree that an individual qualifies as a valid legal heir to the deceased before that heir may inherit. Specific inheritance law depends greatly upon the state in which the probate court is located; therefore, specific inheritance questions should go to an attorney.
When someone dies without leaving a will or some other type of legal instrument that stipulates who will take his remaining property, the individual has died "intestate." Inheritance only comes into play in cases of intestacy. Otherwise, the will, trust or other legal document disposing of the assets will control. Individuals can also die "partially intestate," meaning that they have made a will but have not disposed of their assets in entirety.
An "heir" is an individual whose relationship to the deceased makes him legally qualified to inherit. Individuals who claim to be heirs to the deceased must prove that fact to a court. Typically, a potential heir must submit an application to the court with some basic information about the heir and his relationship to the deceased. Most states call this application an "affidavit of heirship" and require the applicant to have the affidavit notarized.
Probate courts typically hold a hearing to decide whether someone is a valid heir. Many states make this hearing a formal proceeding; they require the heirship applicant to give notice to all other parties who have a potential interest in the property at issue. Other parties in interest can generally then appear and offer contrary evidence or contest the applicant's heirship. Once the court decides an heir is valid, it issues a legal decree to that effect, known as a determination of heirship.
Often, multiple parties will show up and prove valid heirship to the court. In such cases, to decide who will take the property, the court must determine which party has the closest relationship to the deceased. Each state's statutes establish an "order of intestate succession," which determines how close each relative in each generation stands to the deceased. Systems vary widely by state; however, in most states, the deceased's descendants (his children and children's children, etc.) come first. If there are no descendants, then the order moves on to "ancestral heirs," the deceased's parents and their children, grandparents and their children, and so forth.
Occasionally, no valid heir to property exists. This situation typically crops up either when all of the deceased's relatives are dead or when any living relatives have disclaimed (refused to take) the inheritance. If no valid heir is found, the property escheats, meaning ownership forfeits to the state. Escheat generally occurs with land, but personal property can escheat as well.
- "Wills, Trusts and Estates (Seventh Edition)"; Jesse Dukeminier, Robert H. Sitkoff, James M. Lindgren and Stanley M. Johanson; 2005
- Heirship: Determination of Heirship Proceedings
- Law Office of Stephen J. Gruber:What Happens If You Don't Have a Will or a Trust?
Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.