What Rights Do Heirs Have in Probate?

An heir is one who stands to inherit from a person after that person dies. What rights an heir has to any inheritance are governed by the probate laws of the state in which the decedent lived. Probate laws differ significantly between states; consult a qualified probate attorney in your area if you need legal advice about your rights as an heir or beneficiary.

Heirs

An heir is anyone who is entitled to receive property from a decedent's intestate estate. When a person dies, all the property the person left behind is referred to as the estate. An intestate estate is one in which the decedent did not leave behind a valid last will and testament. If the decedent doesn't leave behind a will, state law determines who inherits property regardless of the decedent's desires.

Inheritance

If a person dies without a will, her heirs inherit the estate. However, the manner in which this happens differs between states and is based on the relationship of the heir with the decedent. For example, in Utah, a decedent's spouse inherits the entire estate if the decedent left no children, or if all the children are descendents of both the decedent and surviving spouse. If the decedent left children who are not children of the surviving spouse, the spouse receives the first $75,000 of the estate (as of 2011), pus half of the remainder, according to Utah Code section 75-2-102.

Wills

If a decedent leaves behind a valid will, the intestate succession laws no longer govern who receives property. Instead, the will determines who the heirs are. In general, a person can choose to give away his property to anyone he wants and can choose to "disinherit" children or relatives. One exception to this rule is the spouse's elective share. An elective share is a percentage of the estate a spouse is automatically entitled to regardless of whether the decedent included her in the will. This effectively means a person cannot disinherit a spouse.

Procedural Rights

When a person dies, an heir has specific rights in the probate process. Once a person dies, the probate court has to appoint a person to oversee the redistribution of estate property. This person, known as a personal representative or an executor, generally has to include the names of any heirs as a part of the application to become a named personal representative. Once so named by the court, the representative must notify all the heirs of the appointment.

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