What are Heirs? Why are they important?
August 11, 2009
If you interact with an estate attorney, you may hear the term “heirs.” You may think you know what this term means, but it actually has a precise legal definition. In South Carolina, the term heirs is defined in South Carolina Code of Laws 62-1-201(17). The statutory definition is “those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.” The statute of intestate succession is found in South Carolina Code of Laws 62-2-102 and 62-2-103. Intestate succession is where you turn to determine the persons entitled to inherit from a Decedent when there is no Last Will and Testament.
The South Carolina intestacy statute sets forth the heirs as follows:
1. Survived by a spouse and no issue: Spouse.
2. Survived by spouse and issue: Spouse receives one half and all issue share one half.
3. Survived by issue, no spouse: All to issue.
4. One or both parents, no spouse or issue: All to parents.
5. No spouse, issue, or parents: All to issue of Parents (Decedent’s siblings, nieces/nephews, etc.).
6. No spouse, issue, parents, siblings, issue of siblings: All to grandparents or issue of grandparents.
7. No spouse, issue, parents, siblings, issue of siblings, grandparents or issue of grandparents: All to great grandparents or issue of great grandparents.
8. No spouse, issue, parents, siblings, issue of siblings, grandparents or issue of grandparents, great-grandparents or issue of great grandparents: All to step children or children of step children.
9. None of the above takers available: The estate is taken by the State of South Carolina.
Why is it important to identify the heirs? Firstly, heirs are entitled to inherit a Decedent’s estate when the Decedent left no Last Will and Testament. Thus, the heirs inherit when Decedent died intestate.
Secondly, you must know who the heirs are even when the Decedent did leave a Last Will and Testament. The Last Will must be filed with the Probate Court and admitted to probate. You are required to provide proof that all of the heirs have been given notice that a Last Will has been submitted for probate. Thus, it is important to prepare a complete and detailed family tree as part of the process of planning for the orderly distribution of your estate. It is my standard practice to develop as detailed a family tree as possible for every estate planning client.
In the situation where the Client has not kept in touch with family members, the requirement to give notice to the heirs can cause a hold up in the distribution of the estate, and can lead to increased expenses in searching for potential heirs. This situation calls for the use of a Revocable Living Trust, as notice to the heirs is not required to distribute an estate according to the provisions of a Living Trust.