Heirs vs. Beneficiaries

May 23, 2016 § Leave a comment

It often happens in a testate estate that I am called upon in one order or another to adjudicate a legatee or other person designated to receive a bequest as an “heir of the decedent.”

A beneficiary under a will may, indeed, be an heir, but not necessarily.

An heir is a person having a right of descent and distribution by virtue of MCA 91-1-1, et seq. when there is no will.

A beneficiary is a person designated in a will to receive a specific devise or bequest or to receive all or part of the residuary estate. It is not required that heirs be named as devisees or legatees in a will. Heirs may be disinherited.

Thus, it is inaccurate, and can be misleading, to include language in your pleadings and proposed orders and judgments naming devisees and legatees of wills as “heirs” when they are not necessarily so.

To be accurate, name the beneficiaries under the will in your case as “beneficiaries.” Save the designation of “heirs” for your intestate cases; however, in districts where your chancellors require determination of heirship even in testate estates, limit your use of the term “heirs” to those so determined to be, distinguishing them from the beneficiaries under the will.

A helpful glossary of terms used in probate matters can be found at this link.

 

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