An heir is a person entitled to inherit property and other assets from an individual who has died, based on the rules of descent and distribution, according to state laws. An heir is usually the spouse or child of the decedent, but if neither of these exist, it can be another close relative. In modern times, the term heir is also used to describe someone that receives assets according to a person’s will. To explore this concept, consider the following heir definition.
Definition of Heir
- A person who inherits, or is entitled to inherit, all of the property or other assets, of a deceased person, based on their rank or relationship with the deceased.
1225-1275 Middle English heir
Laws of Intestate Succession
The legal term “intestate” refers to the passing away of an individual without a will to direct distribution of his estate. When this occurs, the probate court must determine how the estate’s assets will be distributed. The laws of intestate succession vary by state, but all of them specify the order in which family member heirs have a right to a portion of the decedent’s property. Such laws are found in the state’s probate code, and are administered by a judge in probate court. Many people find it helpful to seek the assistance of a probate or estate planning attorney, both to create a will, and for guidance in the event a family member has died intestate.
What is an Heir vs. a Beneficiary
While the terms heir and beneficiary are often used interchangeably, they are actually two very different things. An heir automatically inherits based on lineage. There is no will required for an heir to inherit the assets of a decedent, and each state has specific guidelines for the order in which family members inherit. This is referred to as “intestate succession.” On the other hand, beneficiaries inherit money or property as stated in a last will and testament, even if it is not the same as the state’s laws of succession. In this way, leaving a will overrides the natural succession of heirs, allowing the deceased to decide who inherits what from his estate.
Order of Succession of Heirs
Each state’s probate code spells out the order of succession of heirs in the event an individual dies intestate, and this may vary slightly by state. Generally speaking, if the decedent was married at the time of his death, the spouse tops the list of heirs. Any marital property becomes the property of the surviving spouse, though some states provide for children of the marriage, and even children of the deceased from another marriage, to receive a portion of the estate.
Collateral heirs are the decedent’s siblings and parents. If the deceased person was not married when he died, and did not have living children, most state’s laws place the decedent’s parents next in the line to inherit his estate. When the parents are also deceased, the siblings are next in the line of succession. In the event more than one collateral heir exists on the same level of succession, the property is commonly divided equally. For instance, when Ralph passes away without a will, he had long been divorced, and had no children. Ralph’s parents have both passed, so his assets will be divided equally among his brother and two sisters, each receiving one-third of his estate.
The term heir apparent is used in relation to an individual’s position in a line of succession to a title or position, most commonly in royalty. An heir apparent is the person first in line of succession, and cannot be replaced or moved down the line while still living. For example, King Oneup and his wife have a son, Borneto, who will, by birthright, take his place on the throne when his father dies. Even if more children are born to the king and queen, Borneto remains first on the list of succession, or heir apparent.
By contrast, if King Oneup and his wife have been unable to have children, an heir presumptive is named to succeed the king to the throne. This might be a younger brother of the king, or his brother’s oldest male child. An heir presumptive holds his position only so long as a true heir does not come along to bump his position down on the list. If, in this case, King Oneup has named his nephew, Brant, as heir presumptive, then two years later, the king and queen have a child of their own. This baby becomes heir apparent, moving Brant down on the list of succession. In many cultures, the title of “crown Prince” is given to the heir apparent.
Even in societies with no monarchy, the term heir apparent is sometimes used in reference to an heir to an individual’s large estate. Usually this would be the individual’s oldest child, who is set to inherit a large amount of financial and property assets, and perhaps business interests as well. When used in this manner, the term heir apparent still means the heir is firm in his place at the top of the inheritance list, and cannot be displaced by another.
Heirs and Probate Court
There are times when the death of an individual who has not left a will creates disputes as to who should inherit the decedent’s estate. This is why such cases are required to go through the probate court process. The probate court reviews the estate, including all assets and debts, then determines the order in which surviving heirs will be given all or a part of the estate’s assets. To start this process in most jurisdictions, a family member or heir can file a petition for heirship with the probate court in the jurisdiction in which the decedent lived. A hearing will be held in probate court so that the judge can make a determination.
Related Legal Terms and Issues
- Beneficiary– A person that is set to accept property based on a person’s will or trust.
- Decedent – A person who has died.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Judgment – A formal decision made by a court in a lawsuit.