When a decedent passes away, individuals who are named in the decedent’s will are entitled to receive property as it is specifically devised in the will. Moreover, when a decedent dies in possession of property that is not devised in his or her will, that property passes through intestacy (i.e., outside of the will). But, who is entitled to receive that property? Who is considered an “heir?” How does one find out if he or she is an heir or beneficiary?
Under Florida law, “heirs” or “heirs at law” are those persons who are entitled to the estate of a decedent under the statutes of intestate succession. Fla. Stat. § 731.201(20). In Synder v. Davis, the Supreme Court of Florida interpreted the term “heirs” in Article X of the Florida Constitution to include not just family members who would take property at the death of the decedent, but also those who could take under intestacy statutes. Effectively, the Florida Supreme Court interpreted the word “heirs” broadly to include all potential takers under the intestacy statutes.
In many probate proceedings, there are questions as to whom certain unmentioned property will pass. If uncertainty arises, any interested person may file a petition for determination of beneficiaries. Fla. Prob. R. 5.385(a). Florida Probate Rule 5.385 requires that a petition for determination include (1) the names, residences, and post office addresses of all persons who may have an interest…known to the petitioner or ascertainable by diligent search and inquiry, (2) a statement of the nature of the interest person, (3) the designation of those believed to be minors or incapacitated, and (4) a statement as to whether the petitioner believes there are, or may be, others who have claims against or interests in the estate. Id. Alternatively, if an estate is not being administered, a separate civil action may be brought in court. Fla. Stat. § 733.105(3).
At a hearing to determine an heir, certain types of evidence that are normally barred under hearsay rules are allowed into court. For example, information contained in certificates of marriage or other sacraments, charts, ring engravings, portraits, tombstones, etc… are allowed in as evidence. Fla. Stat. § 90.803(12)-(13). Also, a witness can testify as to reputation among members of a person’s family, associates, or persons in the community, regarding such items as an individual’s birth, adoption, marriage, divorce, death, legitimacy, relationship, ancestry, or other similar aspects of his or her personal or family history. Fla. Stat. § 90.803(19).
Due to technological advances, there are many genealogical tracing services that allow individuals to find missing heirs who cannot be discovered otherwise. These tracing companies are often able to have their own investigators check the country records to find estates in which there is a question as to heirs.
If you or someone you know has an issue regarding intestacy or you would like to take appropriate action to determine if you are an heir to an estate, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin are ready, willing, and able to assist with your estate planning needs. Please feel free to contact us for an initial consultation.