Branching Out: Identifying Potential Heirs in Estate Planning or Probate

Estate Planning

The process of finding and contacting potential heirs can be arduous, potentially involving hours of research and, sometimes, a genealogist. This is especially true when someone dies without a Will and has no surviving spouse, children, grandchildren, or siblings.

When someone dies without a Will (known as intestate), the court requires that next of kin be identified as potential heirs. Likewise, when someone dies with a Will, there is always potential that an heir who is not named as a beneficiary may contest the Will, claiming they are entitled to receive property from the deceased’s estate.

The laws vary from state to state but, in New Jersey, the estate executor must notify potential heirs and beneficiaries that the Will is being probated, along with additional information — including a copy of the Will if requested. This notification must be made within 60 days of the date of the Will’s probate to all named in the Will or related to the deceased, even if they are not named in the Will.

It’s important to note here that an heir is a close relative, such as a spouse, child, parent or sibling, who is entitled to inherit property when there is no Will or it doesn’t include distribution instructions for a specific asset. A beneficiary is someone specifically named in a Will as the recipient of property. A beneficiary could be an heir, a more distant relative, a friend or even an organization.

Without specific beneficiaries named to an entire estate or pieces of it, the court will rely on an accounting of potential heirs to determine how to distribute the property. Therefore, a testator should work closely with an estate planning attorney in drafting a Will to ensure all potential beneficiaries are noted and property is properly designated for distribution. This ensures that the decedent’s wishes are carried out and saves family members from costly and time consuming next-of-kin searches after death.

If a probate court determines that a search for next of kin must be conducted by an estate administrator or executor, there are three steps to the process:

1. Understand Which Relatives Must be Found

Every state requires different levels of relationships that must be identified. For example, if no close aunts or uncles, cousins or nieces or nephews can be identified, then the family tree research may need to go back a couple generations to move forward to find more distant, living relatives. Blended families and inter-family marriages can make this process more difficult.

2. Identifying Relatives

With records increasingly moving online, the search for relatives is becoming a little easier. Public records, such as birth, marriage, divorce and death records, as well as newspaper articles and obituaries, are all useful tools. However, not all jurisdictions will have this information online. Family trees are very helpful and should be shared with an attorney during the estate planning process. Sites like Ancestry.com and 23andMe, which use DNA to construct family trees, can be helpful… but may also lead to previously unknown potential heirs and complications. Some states may also require a notice be published in the local newspaper seeking potential next of kin.

3. Reporting to the Court

The court will require an affidavit that includes a report of the research results identifying the next of kin by their relationship to the decedent and their contact information. The report should also show evidence of the breadth of the search and due diligence efforts to find missing or unknown family members. Sometimes, a chart or family tree is needed in complex or large families.

If a loved one or someone you know has died without a Will, it’s important that the executor identify quickly all potential heirs to the estate. We have helped families and individuals navigate this arduous process and are here to help. To book a virtual or in-person consultation with one of our attorneys, contact our office at 833.888.0462 or [email protected].

Elder law, Estate Planning, Heirs, Will

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