DETERMINING DISTANT RELATIVES FOR
PURPOSES OF INHERITANCE

The heirs of a decedent are determined in a court hearing when a person dies leaving property to pass to others. When the decedent leaves no spouse, child or grandchild surviving, establishing the more distant heirs sometimes becomes quite complicated.

In an earlier article titled Defining Heirs of a Decedent, a general explanation of heirs was given. It principally was addressing close heirs of the decedent, often referred to as direct descendants of the deceased. This article will focus on other descendants and the determination of heirs through parents and grandparents of the deceased.

If a person dies leaving no spouse, child, or other descendant surviving, the next level for determining heirs is that of decedent’s parents and their descendants. If no parent, brother, sisters, niece, nephew, grandniece or grandnephew survive, the next rank to determine heirs is through grandparents, both paternal and maternal. If there is no taker through grandparents, the State of Michigan takes the intestate share of decedent’s estate.

MCL 700.2103

If both parents are deceased, the decedent’s brothers and sisters will be determined to be the heirs. If no sibling survives, nephews and nieces will be the heirs. When going through parental lineage, the determination can go through nephews and nieces and grand nephews and grand nieces.

Under the prior probate code, the representation ended at nephews and nieces.Under the prior probate law and the current code, a person can stand in the shoes of another by way of “representation.” Essentially this means that if a member of a generation predeceases a certain decedent, then the descendants of that member “represent” the interests of that member after his or her death. MCL 700.2106 

To illustrate, assume a person dies with no spouse or direct descendant surviving, and both parents are deceased. Here, brothers and sisters are the heirs. Assume this decedent has three brothers surviving but another brother predeceased leaving two children surviving. These latter two children will be determined to be heirs by representation through their deceased parent yet they are niece and nephew to the decedent.

In determining heirs, once a survivor in a generation is established, that person becomes the closest heir. Descendants of deceased members in that generation also will be determined to be heirs.

If no relative survives through grand nephews and grand nieces, heirs are determined through the paternal and maternal grandparents of the decedent. Tracing this lineage can become very confusing and difficult. Usually considerable research by a relative or friend of decedent’s family is required.

If no heir can be determined through any lineage, including great grandparents of the decedent, the estate passes to the State of Michigan. Under EPIC, in this situation the State is called an heir. MCL 700.2105

In determining lineage through a grandparent, the procedure is to establish the aunts, uncles, first cousins, and possibly even first cousins once removed. First cousins are the children of one’s aunts and uncles. They become heirs by representation of their deceased parents. Full cousins are all of the same generation.

The child of your first cousin is your first cousin once removed. A grandchild of your first cousin is your first cousin twice removed.

Second cousins are determined by tracing the lineage through a great grandparent, not a grandparent. Third cousins are determined by tracing the lineage through a great-great grandparent. These processes can be repeated indefinitely. Under EPIC, none of these distant relatives can inherit because descendants are determined only through grandparents and not great grandparents of the deceased.

A person determined to be an heir by representation will share in an intestate estate. The share a person takes by representation has changed under the new probate laws. Under the prior probate code, persons inheriting property by representation received a share by what is called per stirpes distribution. With this, the share by representation was the share the deceased parent would have received. MCL 700.108

For example, assume A dies leaving brothers and sisters as closest heirs with two sisters surviving but brothers B and C predecease and leave as their survivors one child and three children, respectively. If decedent left no will the estate would be divided into four parts. The two surviving sisters will each receive a 1/4th share. 

Under the prior code, another 1/4th share went to the child of B. The other 1/4th went to the three children of C. This share was divided equally between them and each received a 1/12th share of the estate.

Under the new Estates and Protected Individuals Code, this distribution changes for all persons who die after March 31, 2000. Now the distribution to persons partaking in an inheritance by representation is made by a per stirpes distribution.

By this distribution, all the shares by representation at a generation are divided equally amongst those persons in that generation. This change was made because studies made nationwide showed parents wanted their estate to go to all grandchildren equally if more than one child predeceased them. It seems to be more fairly distributed.

Using the same decedent A above, each of the two sisters still will receive a 1/4th share. But the two shares of the predeceased brothers are combined and divided by the number of persons taking by representation from them. Thus, the two 1/4th shares will be combined to be a 1/2 share. This will go to these four persons by representation in equal shares. Each will receive a 1/8th share. This distribution places all the persons in the generation on an equal status.