Problems That May Arise With Estate Beneficiaries

Too Many Heirs?

Let's say a person dies without a will and does not leave a spouse or children, or parents. In that case the property will go to the siblings, of if a sibling has predeceased, then to the children of the siblings. If the person who dies has a lot of siblings, many of whom have predeceased after each producing a number of children, there are going to be a lot of heirs. Some of these heirs may receive only a few hundred dollars if the estate is small, but they all have to either waive their rights to the inheritance or be put on the mailing list for all court filings. For small estates this can be quite burdensome.

Unknown Heirs

Suppose Dad dies leaving no spouse, no will and two adult children he has kept in touch with and an older estranged adult child he and the other two children have had no contact with in decades. Does the estranged child have to be included in the estate? Yes. The estranged child has a one-third interest in the estate. If the estranged child has died and left children, his children share equally in his one third interest. But maybe the estranged child has died without children? In such a case an investigator or probate researcher is hired to try and locate the estranged child and or his children. If the estranged child's social security number is known the Social Security Administration will advise if they believe he is dead or still alive. Usually, however, the social security number of the estranged child is not known. If proof of the estranged child's death is found along with proof that he left no children, then his share will go the two known children. (Actually, for the two known children to get the share of the dead estranged child, the estranged child would have to have died before Dad in this example.)

Heirs Can't Agree

Of course the biggest problem estates are those in which the heirs start fighting among themselves. See also Family or Personal Probate Issues.

But even if the heirs are reasonable and don't get into a fight among themselves, it is important to understand that the estate attorney represents only those heirs who are named as Executor Administrator.

For the probate process to work smoothly, all heirs need to understand that the estate lawyer representing the Executor(s) or Administrator(s) and the Executor or Administrator should communicate with other heirs on estate issues.

(Technical Clarification: A lawyer representing a particular heir to do a probate has a fiduciary duty of honesty to other potential heirs, even if the lawyer is not representing them. For example, a client tells me that Dad, who died without a Will, had two children, one is the client and the other is an estranged son who may not even have been alive when Dad died. In this case I would have a duty to try and find out if Dad's estranged son survived or if he did not, whether he left children who would inherit in his place.)

(Further Technical Clarification: Suppose Joe dies without a Will. His sister calls me and says she doesn't think he had any children, his parents are dead and she is the only sibling. In this case she would inherit the entire estate. But if the sister says he might have had an illegimate child (that was never adopted by anyone else) I would have a duty to see if this person could be located and very possibly to set up DNA testing to determine if this person was a child of Joe.)

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