DEFINING HEIRS OF A DECEDENT

This article details the laws establishing heirs and their rights of inheritance as established under the Estate and Protected Individuals Code. It is not intended to be all-inclusive. A thorough explanation can come from your estate-planning lawyer. Reference can also be made to the several statutes that comprise the laws for determining the heirs of an individual decedent.

A person who dies without a will dies “intestate.” If a person dies intestate, the property owned at death that must be probated will pass according to the laws established by the state legislature. 

In Michigan, as of April 1 this law is known as “EPIC”, that is, the Estates and Protected Individuals Code. This probate code applies to the estates of all residents of Michigan who die after March 31, 2000.

Persons entitled to receive the property of a decedent that must be probated are called “heirs” or “heirs at law.” Heirs can include the surviving spouse, children, grand and great grandchildren, parents, grand parents, brothers, sisters, nieces, nephews, grand nieces and nephews, and cousins.

A separate determination must be made for each decedent. In simplest terms, as a rule, if heirs nearest in line to decedent survive, the potential heirs further distant will not inherit any property from the decedent.

Probate laws make special provisions for surviving spouses – whether as husband or wife. There are many facts that can affect the surviving spouse’s share. The following details the essence of the spouse’s share. This article cannot cover every possible circumstance that can change that share and there are many. Consultation with a lawyer is needed in every estate.

If decedent dies leaving no descendant surviving, whether natural born or adopted, and leaving no parent surviving, the surviving spouse will take the entire estate. No descendant surviving means that no child, grandchild, great grandchild, etc. of decedent was living for 120 hours after the time of decedent’s death.

If a person dies leaving no descendants, but leaves a spouse and at least one parent surviving, the spouse takes the first $150,000 plus ¾ of the balance of the estate. Under the law in effect until April 1, 2000, in this instance the surviving spouse received only the first $60,000 of the estate plus only ½ of the balance of the intestate estate. To make matters worse, the $60,000 was reduced by any amount given to the spouse in the will of decedent, if there was a will.

Upon the death of a person who leaves surviving a spouse and descendants who are also descendants of the spouse, the spouse will receive the first $150,000 of estate assets plus ½ of the balance of the estate. The prior probate code gave the surviving spouse just $60,000 plus ½ of the balance of the remaining intestate estate.

If the decedent dies after March 31, 2000 leaving a spouse and descendants surviving, but the descendants are not descendants of the surviving spouse, the spouse will receive the first $100,000 of estate assets plus one-half of the balance of the estate. In this situation under the prior law of the Revised Probate Code, the surviving spouse received one-half of the estate without first receiving a lump sum.

Property in an intestate estate that does not pass to the surviving spouse, or if there is no surviving spouse, will pass to persons as set forth in EPIC. The following will state some of the basic determinations of heirs in these circumstances.

If there is no surviving spouse but surviving descendants of deceased, the surviving descendants will receive the entire estate. If there is no surviving spouse and no descendant who survives but at least one parent of the deceased is living, then the entire estate will go to the surviving parent or parents.

If there is no spouse and no descendant and no parent who survives decedent, the entire estate will pass to the descendants of the parents of the deceased. At this level, the estate could be passing to brothers and sisters, nieces and nephews, and in some rare instances, to grand nephews and to grand nieces.

If there are no takers in this last category, the estate may then pass to relatives determined through the paternal great grandparents and the maternal great grandparents. If there is no known surviving heir through these relatives, the intestate estate passes to the State of Michigan.

It is unusual that a person dies with no known heirs and without a will. By understanding how a person’s estate passes upon death, the importance and wisdom of making a will may become clear. To know how the estate passes without a will, one must know who his or her descendants are. There are other complications in a few people’s lives that can affect this also so it is very important to talk to a lawyer and give full disclosure of any person who may be a relative.

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