Issues With Heirs

Too Many Heirs or Too Many Will Beneficiaries:

Let's say Bob and Mary each had five kids by a prior marriage and each wrote a Will leaving everything to the other, but if their spouse does not survive them to the ten kids in equal shares, except that if any kid died before the last of them to die, then that kid's share would be split among all if his or her kids. Or let's say Bob dies without a Will and he was one of seven siblings, he never had kids and both his parents died before he died. Since he had no Will his estate goes in equal shares to his surviving sibling or if sibling predeceased him to the dead sibling's share goes to the kids of the dead sibling. 

Let's say in both examples, there are 14 people who qualify for a share of the estate. Assets that are easily saleable can be sold and money distributed in the correct amounts to these 14 people. If one or more of these 14 people cannot be found their share can be given to the State or County Treasury's Unclaimed Property Division. It gets much messier if one of these examples a person entitled to a share of the estate has died and no one knows if they have kids.

But it can get even worse. Suppose there is a Nevada timeshare in the estate fully paid for. At least one of the beneficiaries wants the timeshare. (This isn't always the case.) Probably no one else wants it. But if 14 people have a right to 1/14th of the timeshare, the court can't give the timeshare to the one who wants it unless the other 13 people sign paperwork to that effect.

So, can the timeshare be sold and proceeds distributed? Not easily! Timeshare brokers typically charge a commission of around 50% of the sales price because they don't sell for much. But in probate a commission for the sale of real estate cannot exceed 10%.

A large number of beneficiaries also creates extra expense. Let's say Bob writes a Will leaving $100 to each of 15 people along with major gifts to other people. Now, until the probate closes, each of these $100 beneficiaries will be on the mailing list for copies of estate proceedings. If it is a complicated probate that could add lots of money for mailings and postage. 

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.)

My Dad Died; Am I Entitled to Anything?

We often get inquiries along the line of: My Dad died; what am I entitled to? This kind of inquiry is usually from someone estranged from their father. The only answer we can give is that if there is real estate such as a house, ownership of the house can be looked up. If it is in Dad's sole name (or jointly held by Dad and someone who predeceased him) then the property will have to be probated and all people who would inherit in the absence of a Will have to be given notice even if there is a Will. But if the property is in a trust, the trust will not be a public record, and the ownership of financial accounts is not a public record.