Who is Entitled to an Unclaimed Estate?
In an ideal setting, when someone passes away, their property will pass to heirs and beneficiaries in accordance with a last will and testament, trust, or other testamentary instrument. Unfortunately, many people do not execute a will prior to their passing. State law, which is in many jurisdictions referred to as a Descent and Distribution statute, dictates what happens to the estate of a decedent when no will is in place (when someone dies “intestate”). Matters can become even more complicated when no legal heir can be located. Continue reading to learn how the state manages intestate succession and what happens when no heirs are around to claim an estate. Reach out to a dedicated forensic genealogist for help identifying the proper heirs to an estate.
The Order of Distribution for Assets: Intestate Succession
When someone dies, the executor of the estate (and, where necessary, a probate court) will do their best to execute the wishes of the decedent in accordance with their will or other testamentary instrument. If no valid will is in place, then state law dictates what happens to the decedent’s estate.
State laws vary on the particulars, but every state has in place a set of rules for “intestate succession.” Typically, the structure will be as follows:
- If the decedent was married and has no children outside of the marriage, the spouse inherits the entire estate.
- If the decedent had children outside of the marriage, the estate will be split between the surviving spouse and the decedent’s children. Depending on the state, the estate may be split between the spouse and children of the marriage.
- If the decedent died unmarried and without children, the estate will pass to the next closest living relatives. Typically, first in line are the decedent’s parents, followed by the decedent’s siblings and the siblings’ children.
- If there are no surviving children, a spouse, parents, siblings, or nieces and nephews, then the state will expand the circle of blood relatives until it finds a surviving family member. The precise order of distribution varies by state.
If an Heir Has Died
If an heir to the subject decedent is identified but they have already died, referred to as a post-deceased vested heir, then their share of the estate might go to their estate (if any). Again, state laws vary, but under many intestacy laws, the post-deceased vested heir’s share of an estate should be distributed to their estate (if any). Determining who has the right to inherit can be a complex procedure and depends on the specifics of the laws of each state. Reach out to a dedicated forensic genealogist for help identifying the proper heirs to an estate, including post-deceased vested heirs and the administrators or executors to their estate.
What if No Heirs Can Be Found?
If there are no surviving heirs, or if any potential surviving heir simply cannot be found, then the property will revert or “escheat” to the state. Each state has its own laws regarding how this will occur. Typically, there will be a long waiting period during which a living heir can show up and claim their right to the estate (for example, in California, the property must go unclaimed for five years). Forensic genealogists can be employed to track down heirs during this period in order to ensure that the property finds its way into the appropriate hands.
Assuming neither the executor nor the state can find a suitable heir, eventually, the property will escheat to the state. The state will need to demonstrate that it conducted sufficient due diligence in trying to track down an heir; intestacy laws are written to favor giving the property to some heir rather than ever letting the property go to the state. Additionally, any creditors (hospitals, credit card companies, mortgage lenders) will be able to collect their share of the estate to pay off any extant debt before the property escheats to the estate. When the state does finally take the property, what happens to that property depends on the specific state laws in place. Property might be sold and the proceeds collected by the government and added to the state’s general fund. Sale proceeds could instead go to targeted agencies, entities, or even charities; it’s ultimately up to the state.
If you’re an estate administrator in need of experienced assistance identifying and locating missing heirs to an estate and for determination of heirship proceedings, or heir research services in order to satisfy due diligence requirements, contact the experienced and thorough forensic genealogists at Von Langen, LLC at 561-748-2936.