After someone passes away comes a challenging time for the individuals who loved them, including family, friends, and extended relatives. There is the grieving aspect, of course, but there is also the important matter of figuring out what to do with their assets and belongings.
If you are an immediate family member of the decedent, then you may be fully or partially entitled to inherit property. Further, you may even be assigned the responsibility of administering their estate. Keep reading to find out what level of heir involvement you may have regarding your loved one’s estate.
What is an heir?
An heir, by both definition and common law, is an individual who stands to inherit property and assets of a deceased person. They are typically partially or fully entitled to their estate through blood, marriage, Estate Plan, or other legal process. Children are the most common examples of heirs. If there are no living children, then it could be the decedent’s grandchildren and so on and so forth.
In the context of estate planning and probate, there is a key distinction between the heirs vs. beneficiaries of a decedent’s estate.
Heirs vs. beneficiaries
A beneficiary is an individual or organization that is specifically named in a legal document, such as a Will or Trust, to receive property from an estate. It does not necessarily have to be a direct family member or even relative of the deceased. For instance, someone could theoretically name their church organization as the beneficiary of their entire estate if that is what they wish.
It is said that an individual dies intestate if they do not have a Will. In this case, the probate court uses state laws to identify heirs (per the common law definition in the prior section) and use next-of-kin rules to determine how property should be distributed from the estate.
In other words, an heir is legally entitled, whether estate planning documents were left behind or not. Our heir vs beneficiary guide elaborates on this topic more.
What is probate, and how will I be notified?
Probate is a legal process that validates the Will of a decedent and ensures that their estate is distributed to the proper parties. During this process, they will ensure that any interested party has had a fair opportunity to make any claims, that the estate has paid any debts of the decedent, and that the remainder property and assets are transferred to the decedent’s beneficiaries. Guardianship is also appointed if the decedent has any dependent or minor children.
If you have a stake in the decedent’s estate, then by law, you should receive a notice of probate by mail. This is done either by an Executor or Administrator of the estate.
Executor of a Will
The Executor is an individual named by the Testator (the person who created the Will) to administer the estate after they pass away. This can be any trusted individual, including an heir of the estate. It’s not uncommon for an individual to choose their eldest adult child as their Executor, for example.
One of the Executor’s very first duties is to file the Will and a petition to open probate. They must mail notices to heirs, beneficiaries, and creditors of the estate as well as keep them up-to-date as probate progresses.
Administrator of an estate
There are instances in which a person dies intestate, meaning they don’t have a Will in place. In this case, an heir should still file for probate. The probate court will instead appoint an Administrator instead of an Executor. Again, as an heir, there is a chance that you can be appointed Administrator.
The probate judge will use state laws to determine the rightful heirs of the estate and make distributions accordingly.
Small estate affidavit
If the decedent’s estate is valued at or below an eligibility threshold established by the state, then an heir may choose to file a small estate affidavit instead. This may not be available in all states. Small estate probate is essentially an expedited probate process that takes less time.
I’ve been named the personal representative of an estate, what do I do now?
As the court-appointed Executor or Administrator of an estate, one of the first orders of business is publishing a notice of probate.
What is a notice and is it required?
There are a few different types of notices pertaining to the probate process. The key types of notices include a published notice in a local newspaper, a mailed notice of probate, and a death notice.
A published notice is posted in a local publication for a set number of days with the purpose of notifying the public of the Testator’s death and providing an opportunity for creditors of the estate to make a claim. After the deadline has passed, they can no longer make a claim against the estate.
The Executor is also responsible for dutifully mailing out notices of probate to any interested parties. This notifies beneficiaries, other heirs, and known creditors of the probate case. They are typically required to file proof that they mailed these notices with the probate court.
Last but not least, the Executor also sends death notices to any important entities who should be notified of the decedent’s death. This might include the decedent’s employer, bank, landlord, government agency.
Which family members are entitled to notice?
While the exact rules may vary from state to state, the family members who are entitled to a probate notice are as follows:
Any family member named in the Will
Any family member who may have been nominated as Executor
Any and all family members who would be entitled to inherit any portion of the estate per the state’s intestate succession laws (even when there is a Will)
In California, for example, these are the decedent’s “next of kin,” in order:
Surviving spouse or registered domestic partner
Children
Grandchildren
Parents
Siblings
Nieces and Nephews
Grandparents
Aunts or uncles
Cousins
Issue of predeceased spouse
What if an additional family member wants to get notified?
The rules regarding next of kin vary from state to state. For instance, what if the children of a predeceased spouse of the decedent want to get notified? When it comes to sending out probate notifications, there is nothing stopping you from being as thorough as possible.
Anyone can file a request to be notified when a Will is admitted to probate, so be sure to include these individuals on your list of those entitled to notice.
Otherwise, the onus is on others to make a claim against the estate if they believe they are entitled to a portion of the inheritance, and it is up for the probate court to decide. If an additional relative wants to be included in communications regarding the probate case but weren’t originally on your list, it couldn’t hurt to include them. Ultimately, you should refer to your state intestate succession and probate laws for guidance.
What probate forms do heirs & beneficiaries sign?
It should be no surprise that a court proceeding such as probate will require a number of documents and paperwork. As an heir to an estate, there are typically a number of legal forms and documents that you must sign. The forms that need to be signed vary by state and circumstances of the estate. Here are some common examples:
Consent to Petition
Waiver of Notice
Waiver of Bond
Renunciation & Nomination
Receipt of Assets
Affidavit of Heirship
Tax Form 8971
Consent to probate or appointment
As an heir, the nominated Executor or Administrator of an estate is legally required to send you a notice of probate. You will also receive a waiver form asking for your consent to probate (or a consent to the appointment of an administrator in the absence of a Will).
By signing the form, you are agreeing that the Will that was filed for probate is indeed the decedent’s valid Last Will and Testament. You are also consenting to the individual listed on the form being appointed as the Executor or Administrator of the estate.
Be careful when signing this form, once submitted, your consent to the court is almost impossible to take back.
Waiver of notice
There are laws that protect your interests as an heir of an estate. This includes adequate notice laws that require the personal representative of an estate to send you adequate notices pertaining to the probate case.
As an heir or beneficiary, it is common to also receive a waiver of notice to sign. By signing the waiver, you are agreeing that the court does not have to schedule an initial hearing or provide notices of ongoing proceedings. This is done in the interest of efficiency.
Waiver of bond
A probate bond is ordered by the court before they will formally appoint an Executor or Administrator. This bond ensures that the Executor will complete their administrative duties fully and in good faith by holding them financially liable.
There are two instances when a probate bond is not required. The first is if the Testator waived the bond requirement in their Will. The second is when all parties eligible to receive a share of an estate sign a waiver of bond. If all parties waive the bond and if the court approves, then the personal representative is not required to procure a bond.
Renunciation and/or nomination of a personal representative
An heir may sign a form entitled “Renunciation and/or Nomination of a Personal Representative.”
This form is used if the petition for probate is not a person of priority for appointment as the personal representative of the estate. They are then required to send this form to the person who does have priority, such as an individual who was named Executor in the Will. If they wish to renounce their priority, they may do so. They can also use the same form to nominate the petitioner as personal representative of the estate.
Receipt of assets
The probate court will also require proof that property and assets were properly distributed from the estate. The personal representative will need confirmation from you, the recipient. They will send you a form provided by the court. By signing it, you are confirming your receipt of your share of the inheritance.
Affidavit of heirship
In many states, the formal process of probate can be skipped if the estate is valued under a set threshold. If the estate is eligible, then an heir can file an Affidavit of Heirship with their local probate court. (We used California as an example earlier in this guide, in which case the form is called a Small Estate Affidavit.)
IRS form 8971
Last but not least, the personal representative of an estate must file the IRS Form 8971. This tax form informs the Internal Revenue Service (IRS) the “final estate tax value of property distributed or to be distributed from the estate.” As a beneficiary or heir, you should be receiving Schedule A of the form for receiving property from the estate.
Get the support you need for probate today
Probate is admittedly a complex maze of laws, rules, timelines, and paperwork. Heir involvement can be pretty intensive, especially in the case of a complex estate and definitely if you are named as the Executor or Administrator of the estate.
There is absolutely no shame in asking for help through the probate process. To the contrary, getting support will ensure that you can sail through the process as smoothly as possible. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
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