Here’s an issue that sometimes occurs in the administration of an estate: A person dies without a spouse or children. The individual’s nearest family members are cousins or other extended family members and they cannot be found. Who inherits the decedent’s assets?
When a decedent dies without a will (called “intestacy”), the distribution is generally as follows:
1. To the spouse (and possibly part of the assets pass to the children);
2. If there is no spouse or the spouse is predeceased, then assets pass to the children;
3. If there is no spouse and no children, then assets pass to the parents;
4. If there is no spouse, no children and the parents have died, then assets pass to the siblings;
5. If there is no spouse, no children, the parents and the siblings have died, then assets pass to nieces and nephews;
6. If there is no spouse, no children, the parents have died, there are no siblings or the siblings have died without children, then assets pass to the grandparents (if living) and if not, then to aunts and uncles. If the aunts and uncles are deceased, then assets pass to the cousins.
So, in an intestate situation, a person could die and leave only cousins as heirs.
This can also occur even if the decedent has a will and many of the beneficiaries listed have predeceased the person. If a beneficiary dies before the testator, it is called “lapsing” and his or her share goes to other named residuary beneficiaries of the estate (those people who inherit assets after paying specific bequests) unless it is specified otherwise. The laws of each state vary.
Depending on where you live, there may be anti-lapse statutes wherein state law allows certain decedents (usually children of siblings) to inherit if the sibling predeceases the testator even in cases when the testator failed to mention them in the will.
Conversely, if a beneficiary who was intended to inherit part of the residuary estate predeceases the testator, and that beneficiary is not covered by the anti-lapse statute, then that beneficiary’s inheritance will return to the residuary estate, to be inherited by the other residuary beneficiaries. If there are no surviving residuary beneficiaries and the anti-lapse statute does not apply, then possibly extended family members may inherit.
Therefore, depending on the various scenarios, there can be situations when the estate assets would go to extended family members even if there is a will.
If there’s a possibility that the extended family members will inherit from the decedent, it’s a good idea to draft a family tree during the estate planning process. That way, the personal representative of the estate will have a family tree diagram and possibly an affidavit to review when determining which extended family members will inherit the assets of the estate.
Otherwise, it can be extremely time consuming and costly for the personal representative to find the names of the extended family members — and their locations — in order to serve a citation or notice for them to appear in court or become aware of the estate proceeding.
Further, if there is ambiguity in a family tree, when it comes time to account for and distribute assets, a kinship proceeding may be necessary to resolve who is entitled to inherit from the decedent.
In a kinship matter, the heir or heirs who seek to establish kinship must prove it, or the court will dismiss their petitions to establish kinship and the court will order the assets be deposited for the benefit of “unknown distributees” with the state. No one wants the money to go to the state because proof of kinship cannot be established.
Therefore, it is important for you to have a proper estate plan that sets forth all your wishes and prioritizes your relationships. Speak with your attorney about these issues.