Determination of Heirship
A determination of heirship proceeding is a special type of probate proceeding that only occurs if there was no will to probate, or alternatively, a will was not timely presented for probate within one year. In this process, the Decedent will have died more than one year prior, and there are assets still titled into the name of the Decedent that need to be dealt with in Probate Court.
The two main questions to answer in a determination of heirship proceeding in Missouri are:
1. What assets are stuck in the name of the decedent, that need to be probated?
2. As the name of the proceeding implies, who is an heir under Missouri law?
An “heir” is someone who is legally entitled to receive property from another person upon their death. In most situations, we think of heirs as the spouse or children of the person who passed away, and this is often true, but is not always the case.
Normally, if there is a will that must be probated, the will specifically states who should receive specific assets. The people or entities who receive these assets are called “beneficiaries”, rather than “heirs”. “Heirs” receive an inheritance based on their relationship to the Decedent, as dictated by state law. “Beneficiaries”, however, receive an inheritance because they were specifically and intentionally named as such by the Decedent in a Will or other instrument.
Missouri law provides very specific information about who is an heir for an individual. First, if the person who passed away was married with no children, then the surviving spouse would be the heir, and take all of the assets in the estate. If there was a spouse, and there were also children from the marriage of the Decedent and spouse, then the surviving spouse will take the first $20,000 worth of assets, plus half of the value of the remaining estate. The children would receive the remaining half of the estate. These rules continue on much further, and go further out on the family tree as necessary, depending on the decedent’s family and who is still alive.
Apart from those common situations, determining who is an heir and how much they should receive can become complicated. For instance, parents, stepchildren, siblings, and half siblings might receive some portion of the estate depending on the unique facts and family dynamics of the situation. What about split families, or surviving children when there is a step-parent surviving spouse? Our attorneys will often be able to tell clients who the court will likely determine is an heir after an in-depth review of the facts of your situation.
What is an affidavit of heirship in Missouri?
An affidavit of heirship is a legal document that can transfer ownership of real estate after the owner has been deceased more than one year. It is used outside of probate court to transfer real property from the deceased person to their heirs. This document can only be used when there is no Will, and there was not a probate proceeding involved with the real estate in question. It can be a very useful document because it saves time and expenses related to having to go through probate court, and can be an alternative to the above mentioned determination of heirship proceeding.
Unfortunately, an affidavit of heirship only applies to real property. If there are other types of assets that need to be transferred, an affidavit of heirship will not be helpful. In those situations, you will likely need to go through the determination of heirship proceeding, as described above. That hearing will result in an order from a judge that sets out heirship, and you can show that order to anyone holding property on behalf of the deceased individual.
How do you prove you are an heir?
The determination of heirship proceeding requires that the petitioner list anyone that they believe might be an heir or is claiming to be an heir. The petitioner is required to use “reasonable diligence” to determine whether any other heirs exist.
After filing a petition, a hearing will be set with the court. A notice to each person who is an heir or claiming to be an heir will be provided. Then, those people are invited to the hearing and may provide any evidence that they are heirs as well, if needed.
In addition to the notice provided to known or claimed heirs, the person filing the petition must also publish notice of the hearing in a newspaper or other similar publications in the area for four consecutive weeks. This public notice allows those who may claim to be an heir to act if they want to participate in the hearing.
One can prove heirship by producing any evidence of family relationship with the person who passed away. It could be something as simple as testimony or an affidavit, or it could include physical evidence like birth certificates, photos, or even DNA testing. The type of evidence presented can vary a great deal based on the unique circumstances of the case, and our attorneys can help determine how to best prepare for the determination of heirship hearing. However, keep in mind that proving such a relationships is often not required in most cases, and would only be required if the relationships are scrutinized or called into question.
- Probate Law Overview
- Different Types of Probate Estates
- Typical Probates Estate Administration
- Small Estates ($40,000 Or Less)
- Refusal of Letters of Administration
- Determination of Heirship Proceeding
- Affidavit of Heirship (Real Estate Only)
- Guardianship & Conservatorship Estates
- Ancillary Probate
- FAQ: How Do I Avoid Probate?