What Rights Do Heirs Have in Probate?

Heirs may receive money or property after someone dies.

Heirs may receive money or property after someone dies.

The death of a loved one is not something most people like to think about, but young people must face the prospect of losing their parents or other relatives. Some parents might be willing to discuss their wills and estates with their children, while others may be reluctant to do so. In most cases, heirs and other beneficiaries don’t need to do anything if they are named in a will, but they should still know about their rights.

Heirs and Wills

An heir is commonly thought of as someone who receives money or property from a person who has died. Technically, heirs are the next of kin and are the people who would benefit if the person died without leaving a will. The succession of heirs is based on direct descendants, such as children or grandchildren. Other relatives, such as sisters and brothers, or aunts, uncles, nieces, nephews, and cousins, are called collateral heirs. A beneficiary is a person or an organization, such as a charity, named to receive assets from an estate. Heirs aren’t necessarily beneficiaries of a deceased person’s estate unless they are named in the will. For example, a child who would naturally be an heir could be accidentally omitted from a will or deliberately disinherited. An inadvertent admission can be challenged by a descendant claiming to be an heir.

Probate

Probate is a process for proving a will is valid and for administering the will according to the wishes of the deceased person. An executor, who is named in the will, files the will with the clerk of the county where the deceased lived, and petitions the court to approve the will and officially appoint the executor. If the estate is small, probate may not be required. If there is no will, the court appoints a personal representative to handle the estate. During the probate process, creditors are allowed to file claims for debts the deceased person owed. Once all claims have been filed and paid, the remaining property in the estate is transferred to the heirs and the people or organizations named as beneficiaries.

Read the Will

Not everyone who is an heir or a beneficiary necessarily gets a copy of the will before the person who made it dies. There is no requirement to supply every named beneficiary with a copy. Anyone who believes he is an heir or beneficiary can ask the person, while he is still alive, to see the will, but that request may not be granted. Once a will has been filed for probate in county court, it is a public document. Anyone can get a copy from the court. If the will has not been filed in a timely manner, prospective heirs and beneficiaries may have reason to suspect fraud or other misconduct. Heirs in this situation should consult an attorney to demand that the will be filed with the county clerk.

Misconduct

Although the probate process can drag on, depending on how complex the estate is, most executors fulfill their duties as expeditiously as possible. Occasionally, problems occur in which an executor may be negligent in performing his duties or even guilty of fraud or misconduct. Heirs and beneficiaries have the right to question the executor’s actions by contacting the probate court directly or hiring a probate attorney to investigate. If negligence or misconduct are proven, a new executor or personal representative must be appointed. The next step is an accounting of the estate, and any transactions that have already taken place can be questioned or overturned.

About the Author

As a long-time newspaper reporter and staff writer, Kay Bosworth covered real estate development and business for publications in northern New Jersey. Her extensive career included serving as editor of a business education magazine for the McGraw-Hill Book Company. The Kentucky native earned a BA from Transylvania University in Lexington.

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