What is an heir at law?

Heirs vs. beneficiaries

A beneficiary is anyone named to receive property in a will, trust, life insurance policy or account designation — it can be a friend, a charity or a relative. An heir at law (also called a legal heir or intestate heir) is defined by statute: the relatives who would inherit if there were no will. A person can be both, one or neither. An estranged son who is left out of his father's will is still his father's heir at law, even though he receives nothing under the will.

Why heirs matter even when there is a will

• Notice — most states require heirs at law to be notified when a will is submitted to probate, so they can object if they have grounds.
• Standing to contest — heirs who would inherit more without the will are among the people who can challenge it.
• Partial intestacy — if the will does not dispose of everything, the leftover property passes to the heirs.
• Failed gifts — if a beneficiary dies first and the will names no backup, that share may go to the heirs.

Intestate succession: who inherits

Every state has its own order, but a common pattern — reflected in the Uniform Probate Code — looks like this:

1. Surviving spouse — often everything if all the children are also the spouse's children; otherwise a large share, with the rest to the children. In community property states, the spouse typically keeps their half of community property and receives the deceased's half.
2. Children — including adopted children; children born outside marriage inherit from both parents once parentage is established. If a child has died, that child's descendants usually take their share.
3. Parents, if there is no spouse or descendants.
4. Siblings and their descendants (nieces and nephews).
5. Grandparents and their descendants (aunts, uncles, cousins).
6. The state — if no relative can be found, the property “escheats” to the state.

Who is usually not an heir

• Unmarried partners, however long the relationship, unless the state recognizes the relationship as a marriage or civil union.
• Stepchildren, unless adopted — although some states include them as a last resort before escheat.
• Friends, caregivers and charities.
• In-laws.
• A spouse who was divorced from the deceased, and in some states a spouse who abandoned the deceased.

Most states also have a “slayer rule” that bars anyone who unlawfully and intentionally killed the deceased from inheriting.

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Half-blood relatives and survival periods

Most states treat half-siblings the same as full siblings. Many states also require an heir to survive the deceased by 120 hours (five days) to inherit; if they die sooner, they are treated as having died first.

Proving who the heirs are

Courts rely on birth, marriage, adoption and death certificates. When family relationships are unclear — for example, possible children from earlier relationships — the court may hold a hearing to determine heirship, and Texas and other states use a formal “affidavit of heirship” or determination proceeding, especially to transfer real estate. Professional genealogists are sometimes hired to locate missing heirs.

The phrase “heirs at law” in wills and deeds

When a will, trust or deed leaves property to someone's “heirs” or “heirs at law,” courts usually interpret it to mean the people who would inherit under intestacy rules, determined at a specific time, often that person's death.

Practical advice

If you want property to go to anyone other than your heirs at law — a partner, stepchild, friend or charity — or in different proportions, you need a will, trust or beneficiary designations. If a relative has died without a will and you believe you are an heir, contact the probate court in the county where they lived or a probate lawyer to learn whether a case has been opened.

Because intestacy rules change and differ by state, the law of the state where the deceased lived generally controls personal property, while real estate follows the law of the state where it is located.