Your Rights if You Are an Heir under the Intestate Succession Law

If someone dies without a will, he is said to have died “intestate.” If someone dies with a will, but owned property that the will doesn’t mention, this property is “intestate property.” Oklahoma has laws that specify that certain relatives are to inherit intestate property. If you aren’t getting your proper share of intestate property, you have remedies that you can enforce in court.

This is the third post in a three-part series on your rights to inherit property. In my first post, I talked about your rights as the beneficiary of a trust. In my second post, I discussed your rights as the devisee in a will. In this post, I’ll talk about your rights if you are an heir under the Oklahoma Intestate Succession Law.

What is intestate succession?

If someone dies without a will, he is said to have died intestate. If someone had a will, but the will did not dispose of all his property, then the property not disposed in the will is “intestate property.”

Can you inherit under the intestate succession law?

If any property of a decedent is intestate, then state law provides as to who is to inherit the property. The current law on intestate succession is available here.

The intestate succession law is very complicated, and has given law students headaches on exams. I’ll try, as best I can, to summarize it.

If the decedent was married at the time of his death  

·         If the decedent had no surviving descendants, parents, or siblings, then the spouse gets the entire estate

·         If the decedent had no surviving descendants, but was survived by a parent or sibling, then the spouse gets all the property that the couple acquired “by joint industry” during marriage. The spouse also gets 1/3 of the remaining estate.

·         If the decedent had surviving descendants, and all of the surviving descendants are also descendants of the surviving spouse, then the spouse gets ½ of the estate.

·         If the decedent had surviving descendants, and at least one surviving descendant was not also a descendant of the surviving spouse, then the surviving spouse gets

o   ½ of the property that the couple acquired “by joint industry” during the marriage, and

o   To find out how to distribute the property that was not acquired by the spouses’ joint industry during marriage, count the number of living children of the decedent. Each living child gets an equal share. The spouse gets the same share as each child. For example, suppose the decedent had three children. The spouse gets ¼ of this property, and each surviving child gets ¼.

If the decedent was not married at the time of his death (or if the decedent was married at the time of his death, and some of the property does not go to the spouse) then the property that is not distributed to the spouse, is distributed as follows:

If the decedent left surviving descendants, the decedent’s estate is to be distributed to the surviving descendants “by right of representation.”

“Right of representation” is a difficult concept to understand. The law describes it this way:

“The estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner.”

Here’s a diagram to show how this works:  Suppose Joe dies, leaving three children: Alfred, Betty, and Charles. Alfred is still alive. Betty is deceased and has five children. Charles is deceased and has three children:

Alfred receives 1/3 of the estate. Betty would have received 1/3 of the estate if she had lived.

Divide Betty’s share by five, one share for each child. Thus, each of Betty’s children receives 1/3 of 1/5 of the estate. Each of Betty’s children receives 1/15 of the estate.

Charles also would have received 1/3 of the estate if he had lived. Divide Charles’ share by three, one share for each child. Each of Charles’ children receives 1/3 of 1/3 of the estate. Each of Charles’ children receives 1/9 of the estate.

If the decedent had no surviving spouse or descendants (or if the decedent had a surviving spouse by no descendants) then the property that is not distributed to the spouse is distributed as follows:

·         To the decedent’s surviving parent or parents in equal shares

·         If there are no surviving parents, then distribute this property to the surviving descendants of parents “by right of representation” (see above to see what “right of representation” means)

·         If there are no surviving parents, and no surviving descendants of parents, then the property goes to the surviving descendants of grandparents “by right of representation” (see above to see what “right of representation” means)

·         If there is no surviving spouse, descendants, descendants of parents, or descendants of grandparents, then the property goes to “the next of kin in equal degree”

·         If there is no surviving relative at all, then the property goes to the public schools of Oklahoma.

What should you do if you have the right to inherit property by intestate succession?

If a person died intestate, the estate must be probated, just as a will must be probated. If you have a relative who died, and you believe that you have the right to inherit from this relative by intestate succession, check and see if a probate has been filed. You can find Oklahoma probate records online. To see how to locate these records yourself, read my blog post here.

If a probate has been filed, then someone is probably acting as a “personal representative.” If the personal representative does not perform his duties properly, you may ask the judge to remove this person as personal representative. The personal representative of an intestate has the same duties as the executor of a will. Also, the procedure for removing a personal representative of an intestate is the same as the procedure for removing the executor of a will. To find out a personal representative’s duties, and how to remove a personal representative if he doesn’t perform his duties, click on my earlier post and scroll down to “The executor of a will owes you a duty.”

One duty that the personal representative has in a probate case is to mail written notice of the case (and the date, time, and place of any hearings in the case) to all heirs. If you are the heir in an intestate case, and you find out that a probate has been filed but the personal representative hasn’t sent you written notice, then the personal representative has not performed his duties. This is grounds for possibly getting the personal representative removed. It’s also grounds to set aside any court action that the court performed without your knowledge. (For example, if the court has already distributed property to other people, and you are entitled to some of the property, you can seek to vacate the court’s order distributing the property, and you may be able to recover this property and get the court to transfer the property to you.)

If no probate has been filed, you may file a probate yourself and ask the judge to appoint you the personal representative. To find out how to file a probate, and what you can expect in probate court, read my blog post, “What Happens in Probate Court in Oklahoma?”

Do you need help in an intestate case? Contact the Persaud Law Office

The process of probate, and the law of intestate succession, is complicated, and most people have difficulty navigating the system without a lawyer. The Persaud Law Office has handled many probate cases, and we can help you with yours. If you need help in an intestate succession case, contact us today.