As a real estate and probate attorney, located in Summerville, South Carolina, I often explain the process of determining heirs in our state. The simple answer is leaving a last will and testament. However, should someone die without a will, determining heirs can be daunting. In this article, I will explain heir-at-law, collateral heirs, heir’s property, locating heirs, the importance of creating a will, and estate distribution.

What is an Heir-At-Law in South Carolina?

An heir-at-law is anyone who is entitled to an inheritance from the estate of someone who fails to leave a valid last will and testament or to create any other form of an estate plan. This status can be an important factor in not only in settling an estate but in determining who might be entitled to challenge or contest a will when the deceased does leave one. Exactly who qualifies as an heir-at-law can depend on where the decedent died and what was owned.

Heirs-at-law and their rights to inherit are typically decided in an order called “intestate succession.” The more closely related you are to a decedent, the more likely it becomes that you are an heir-at-law. It is common for a surviving spouse to receive a portion of her deceased spouse’s estate. Generally, a surviving spouse receives all of the marital estate if her deceased spouse had no children, parents, sisters or brothers. If the decedent was married and had one child, his surviving spouse may receive one-half of the marital estate with the other half going to the child. When there is more than one child, a surviving spouse may inherit one-third of the marital estate with the other two-thirds going to the children in equal shares.

Heirs-At-Law and Will Contests. When a decedent does leave a will but glaringly omits someone who would have inherited if he had died intestate, this individual has “standing” to challenge or contest the will in court. Not just anyone can do this—standing means the individual has some financial stake in the estate. This might be the case if the deceased left his entire estate to one child and omitted mention of his other child entirely in his will. An heir-at-law would qualify.

Status as an heir-at-law does not necessarily mean that a lawsuit to overturn the will would be successful. The heir-at-law would also have to establish that the deceased did not intentionally omit him from the will, disowning him. An heir-at-law is not automatically entitled to inherit when there is a will that does not mention him, but only if the decedent had died without any will at all.

A surviving spouse is an exception to this rule. All states except Georgia prohibit a married individual from disowning his spouse and there are laws in place to make sure she receives her fair share of his estate. She is always an heir-at-law, but she would not have to contest the will to claim her share. She would have to bring the omission to the attention of the probate court, however, usually by filing a claim.

Who Is Considered a “Collateral Heir” in South Carolina?

Sisters, brothers, and parents are considered “collateral heirs” because they do not descend directly from the decedent. Generally, if a person dies with no spouse or children, the next in line to inherit are his parents. If the decedent has no living parents, then sisters and brothers are next in the line of succession; it is common for property to be divided into equal shares for the siblings. For example, if a decedent’s only heirs are two brothers and one sister, each will receive one-third of his estate.

What is Heir’s Property in South Carolina?

If no will was ever created, the land may be considered heir’s property, or land, belonging to the descendants of the original owner. What many people do not realize is that heir’s property does not belong to the family that lives or pays taxes on the land, but all heirs, no matter their location. This realization can certainly create strain and confusion for a family. Some descendants may want to sell their portion of the land while another may desire to live on the property for the rest of their life. Ownership of such a property is difficult to determine at best and each generation further complicates the issue. If an issue like this arises, one heir can possibly force the sale of the entire property if their goal is to sell. The unstable nature heir’s property creates a terrifying risk to those who wish to remain on the property if other heirs wish to sell.

Heir’s property was originally divided evenly between each of the original owner’s descendants. With each generation, however, the numbers skew as new heirs are born and older heirs pass away. If one particular family branch has more children, they will own a larger percentage of the property than one with fewer heirs. This creates additional confusion that must be remedied before a conclusion can be made about ownership. To learn more about heir’s property, please refer to my article entitled, “Heir’s Property Law in South Carolina.

What If I Die Without Creating a Will in South Carolina?

 If a person dies without making a will, or intestate, his or her property must go through the probate process in order to have the legal title to the property transferred to their heirs. The probate process is a set of guidelines established by state probate law on how property or assets are to be disposed of when a person dies without a will. The probate process, overseen by a probate court, involves appointing an administrator, identifying heirs, and distributing of assets.

How Do I Find Unknown Heirs in South Carolina?

When it appears that someone has died without any known heirs-at-law, some states require that a special notice is run in the newspaper, alerting individuals to come forward if they believe they are related to the decedent. These people can then file requests with the court for determinations of heirship which would give them a legal right to inherit. Some companies specialize in searching out and identifying next of kin and heirs-at-law, and sometimes a simple review of the decedent’s personal paperwork can impart clues. If no heirs-at-law can be identified, the decedent’s estate would typically “escheat” to the state. In other words, the state would receive the property.

How is the Estate Distributed in South Carolina?

After paying the expenses of the estate and identifying the legal heirs, the probate court will identify what property or assets need to be distributed, and how to distribute them. Even though a person dies without a will, some types of property can be distributed automatically after death. For example, if a bank account is set up as a joint ownership or joint accounts with a right of survivorship, the balance of the account automatically becomes the surviving owner’s property. Similar arrangements can be made for property like land and automobiles. Any property or assets that are not disposed of through a will or right of survivorship will be disposed of by the probate court according to the state’s probate laws.

The rules for determining how much each heir is entitled to receive from an intestate estate vary from state to state. Subtle differences between the rules of different states can have a substantial effect on who inherits when a person dies without a will. Most states’ probate law divides property among a surviving spouse and the children of the deceased.

Creating a will ensures that your property and assets are distributed by your wishes and eliminates the confusion and frustration of identifying heirs. If you would like to learn more about identifying heirs or creating a will, contact the Watts Law Firm.