Intestacy
Encyclopedia
Intestacy is the condition of the estate
of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will
or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate."
Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance
.
or Roman law
because the concept of a will is itself less important; the doctrine of legitime
automatically gives a deceased person's relatives title to all or a large part of the estate's property by operation of law, beyond the power of the deceased person to alter by legacy. This share can often only be decreased on account of some very specific misconduct by the heir. When referring to the devolution of estates generally in an international context, the "laws of succession" is the commonplace term covering testate and intestate estates in common law jurisdictions together with forced heirship rules typically applying in civil law and Sharia law jurisdictions.
After the Statute
of Wills, 32 Henry VIII
c. 1, Englishmen
(and unmarried or widowed women) could dispose of their lands and property by a will. Their personal property could formerly be disposed of by a "testament," hence the hallowed legal merism
"Last Will and Testament."
Common law sharply distinguished between real property
and chattels. Real property for which no disposition had been made by will passed by the law of kinship and descent; chattel property for which no disposition had been made by testament was escheat
to the Crown
, or given to the Church for charitable purposes. This law became obsolete as England moved from being a feudal to a mercantile society, and chattels more valuable than land were being accumulated by townspeople.
s, the law of intestacy is patterned after the common law of descent. Property goes first or in major part to a spouse, then to child
ren and their descendants; if there are no descendants, the rule sends you back up the family tree to the parents, the siblings, the siblings' descendants, the grandparents, the parents' siblings, and the parents' siblings' descendants, and usually so on further to the more remote degrees of kinship. The operation of these laws varies from one jurisdiction to another.
the Intestacy Rules have been uniform since 1925 and strikingly similar rules apply in Northern Ireland
, the Republic of Ireland
and many Commonwealth
countries and Crown dependencies. These rules have been supplemented by the discretionary provisions of the Inheritance (Provision for Family and Dependants) Act 1975
so that fair provision can be made for a dependent spouse or other relative where the strict divisions set down in the intestacy rules would produce an unfair result, for example by providing additional support for a dependent minor or disabled child vis-a-vis an adult child who has a career and no longer depends on their parent.
If a person dies intestate with no identifiable heirs, the person's estate generally escheat
s (i.e. is legally assigned) to the Crown (via the Bona Vacantia
division of the Treasury Solicitor) or to the Duchies of Cornwall or Lancaster when the deceased was a resident of either; in limited cases a discretionary distribution might be made by one of these bodies to persons who would otherwise be without entitlement under strict application of the rules of inheritance.
Under the current rules if you die intestate and you are married or civil partnered, then your partner will inherit under the rules of intestacy. The rules state that if your estate is valued in excess of £250,000 then your partner will inherit the first £250,000, all of your personal belongings, and a life interest in half of the remaining estate of the deceased. Where an estate is worth more than £450,000 and there are no surviving issue but there is a surviving parent then the partner will inherit the first £450,000 along with all of the personal property, and one half of the remaining estate.
. Likewise, in Canada the laws vary from province to province. As in England, most jurisdictions apply rules of intestate succession to determine next of kin
who become legal heirs to the estate. Also, as in England, if no identifiable heirs are discovered, the property may escheat
to the government.
Attempts in the United States to make the law with respect to intestate succession uniform from state to state have met with limited success.
The distribution of the property of an intestate decedent is the responsibility of the administrator (or personal representative) of the estate: typically the administrator is chosen by the court having jurisdiction over the decedent's property, and is frequently (but not always) a person nominated by a majority of the decedent's heirs.
Federal law controls intestacy of Native Americans
.
Many states have adopted all or part of the Uniform Probate Code
, but often with local variations, In Ohio
, the law of intestate succession has been modified significantly from the common law, and has been essentially codified. The state of Washington also has codified its intestacy law. New York
has perhaps the most complicated law of descent of distribution, having been for many years. Florida's intestacy statute permits the heirs of a deceased spouse of the decedent to inherit, in the event that the decedent has no other heirs.
In Alberta
, under the current law
which gives unmarried couples most of the same rights as married couples,
the deceased’s family may discover that the surviving husband or wife might receive no part of the estate. Under Alberta's intestacy legislation, the deceased’s family may discover that a former or "ex" common-law partner may be given the entire estate; ahead of the deceased’s own legally married spouse, parents, or even children.
or of their domicile
apply. In certain jurisdictions such as France, Switzerland, the US state of Louisiana, and much of the Islamic world, entitlements arise whether or not there was a will. These are known as forced heirship rights and are not typically found in common-law jurisdictions, where the rules of succession without a will (intestate succession) play a back-up role where an individual has not (or has not fully) exercised his or her right to dispose of property in a will.
In England and Wales
, the rules of succession are the Intestacy Rules set out in the Administration of Estates Act and associated legislation.
The Act sets out the order for distribution of property in the estate of the deceased. For persons with surviving children and a wealth below a certain threshold (£250,000 as from February 2009), the whole of the estate will pass to the deceased's spouse or also, from December 2005, their registered civil partner. For persons with no surviving children but surviving close relatives (such as siblings or parents), the first £450,000 goes to the spouse or civil partner (as from February 2009). Such transfers below the threshold are exempt from UK inheritance tax
.
In larger estates, the spouse will not receive the entire estate where the deceased left other blood relatives and left no will. They will receive the following:
The children (or more distant relatives if there are no children) of the deceased will be entitled to half of the estate remaining immediately and the remaining half on the death of the surviving spouse. Where no beneficiaries can be traced, see bona vacantia
.
In the United States, each of the separate states uses its own intestacy laws to determine the ownership of its resident's intestate property.
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate."
Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
.
History and the common law
Intestacy has a limited application in those jurisdictions that follow civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
or Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
because the concept of a will is itself less important; the doctrine of legitime
Legitime
In Civil law and Roman law, the legitime , or forced share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause...
automatically gives a deceased person's relatives title to all or a large part of the estate's property by operation of law, beyond the power of the deceased person to alter by legacy. This share can often only be decreased on account of some very specific misconduct by the heir. When referring to the devolution of estates generally in an international context, the "laws of succession" is the commonplace term covering testate and intestate estates in common law jurisdictions together with forced heirship rules typically applying in civil law and Sharia law jurisdictions.
After the Statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
of Wills, 32 Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
c. 1, Englishmen
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
(and unmarried or widowed women) could dispose of their lands and property by a will. Their personal property could formerly be disposed of by a "testament," hence the hallowed legal merism
Merism
In rhetoric, a merism is a figure of speech by which a single thing is referred to by a conventional phrase that enumerates several of its parts, or which lists several synonyms for the same thing....
"Last Will and Testament."
Common law sharply distinguished between real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
and chattels. Real property for which no disposition had been made by will passed by the law of kinship and descent; chattel property for which no disposition had been made by testament was escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
to the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, or given to the Church for charitable purposes. This law became obsolete as England moved from being a feudal to a mercantile society, and chattels more valuable than land were being accumulated by townspeople.
Current law
In most contemporary common-law jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, the law of intestacy is patterned after the common law of descent. Property goes first or in major part to a spouse, then to child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren and their descendants; if there are no descendants, the rule sends you back up the family tree to the parents, the siblings, the siblings' descendants, the grandparents, the parents' siblings, and the parents' siblings' descendants, and usually so on further to the more remote degrees of kinship. The operation of these laws varies from one jurisdiction to another.
England and Wales
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
the Intestacy Rules have been uniform since 1925 and strikingly similar rules apply in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
and many Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries and Crown dependencies. These rules have been supplemented by the discretionary provisions of the Inheritance (Provision for Family and Dependants) Act 1975
Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance Act 1975 is an Act of the United Kingdom Parliament concerning inheritance in England and Wales....
so that fair provision can be made for a dependent spouse or other relative where the strict divisions set down in the intestacy rules would produce an unfair result, for example by providing additional support for a dependent minor or disabled child vis-a-vis an adult child who has a career and no longer depends on their parent.
If a person dies intestate with no identifiable heirs, the person's estate generally escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
s (i.e. is legally assigned) to the Crown (via the Bona Vacantia
Bona vacantia
Bona vacantia is a legal concept associated with property that has no owner. It exists in various jurisdictions, with consequently varying application, but with origins mostly in English law.-Canada:...
division of the Treasury Solicitor) or to the Duchies of Cornwall or Lancaster when the deceased was a resident of either; in limited cases a discretionary distribution might be made by one of these bodies to persons who would otherwise be without entitlement under strict application of the rules of inheritance.
Under the current rules if you die intestate and you are married or civil partnered, then your partner will inherit under the rules of intestacy. The rules state that if your estate is valued in excess of £250,000 then your partner will inherit the first £250,000, all of your personal belongings, and a life interest in half of the remaining estate of the deceased. Where an estate is worth more than £450,000 and there are no surviving issue but there is a surviving parent then the partner will inherit the first £450,000 along with all of the personal property, and one half of the remaining estate.
United States and Canada
In the United States intestacy laws vary from state to state under the American practice of federalismFederalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
. Likewise, in Canada the laws vary from province to province. As in England, most jurisdictions apply rules of intestate succession to determine next of kin
Next of kin
Next of kin is a term with many interpretations depending on the jurisdiction being referred to. In some jurisdictions, such as the United States, it is used to describe a person's closest living blood relative or relatives...
who become legal heirs to the estate. Also, as in England, if no identifiable heirs are discovered, the property may escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
to the government.
Attempts in the United States to make the law with respect to intestate succession uniform from state to state have met with limited success.
The distribution of the property of an intestate decedent is the responsibility of the administrator (or personal representative) of the estate: typically the administrator is chosen by the court having jurisdiction over the decedent's property, and is frequently (but not always) a person nominated by a majority of the decedent's heirs.
Federal law controls intestacy of Native Americans
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
.
Many states have adopted all or part of the Uniform Probate Code
Uniform Probate Code
The Uniform Probate Code is a uniform act drafted by National Conference of Commissioners on Uniform State Laws governing inheritance and the decedents' estates in the United States...
, but often with local variations, In Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
, the law of intestate succession has been modified significantly from the common law, and has been essentially codified. The state of Washington also has codified its intestacy law. New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
has perhaps the most complicated law of descent of distribution, having been for many years. Florida's intestacy statute permits the heirs of a deceased spouse of the decedent to inherit, in the event that the decedent has no other heirs.
In Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
, under the current law
Adult interdependent relationship in Alberta
Since 2003, Adult interdependent relationships have been available to both same-sex and opposite-sex couples in the Canadian province of Alberta, imposing some but not all of the obligations of marriage and providing some but not all the rights and benefits thereof.According to the Alberta Ministry...
which gives unmarried couples most of the same rights as married couples,
the deceased’s family may discover that the surviving husband or wife might receive no part of the estate. Under Alberta's intestacy legislation, the deceased’s family may discover that a former or "ex" common-law partner may be given the entire estate; ahead of the deceased’s own legally married spouse, parents, or even children.
Rules
Where a person dies without leaving a will, the rules of succession of the person's place of habitual residenceHabitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
or of their domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
apply. In certain jurisdictions such as France, Switzerland, the US state of Louisiana, and much of the Islamic world, entitlements arise whether or not there was a will. These are known as forced heirship rights and are not typically found in common-law jurisdictions, where the rules of succession without a will (intestate succession) play a back-up role where an individual has not (or has not fully) exercised his or her right to dispose of property in a will.
In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the rules of succession are the Intestacy Rules set out in the Administration of Estates Act and associated legislation.
The Act sets out the order for distribution of property in the estate of the deceased. For persons with surviving children and a wealth below a certain threshold (£250,000 as from February 2009), the whole of the estate will pass to the deceased's spouse or also, from December 2005, their registered civil partner. For persons with no surviving children but surviving close relatives (such as siblings or parents), the first £450,000 goes to the spouse or civil partner (as from February 2009). Such transfers below the threshold are exempt from UK inheritance tax
Inheritance tax
An inheritance tax or estate tax is a levy paid by a person who inherits money or property or a tax on the estate of a person who has died...
.
In larger estates, the spouse will not receive the entire estate where the deceased left other blood relatives and left no will. They will receive the following:
- all property passing to them by survivorship (such as the deceased's share in the jointly owned family home);
- all property passing to them under the terms of a trust (such as a life insurance policy);
- a statutory legacy of a fixed sum (being a larger sum where the deceased left no children); and
- a life interest in half of the remaining estate.
The children (or more distant relatives if there are no children) of the deceased will be entitled to half of the estate remaining immediately and the remaining half on the death of the surviving spouse. Where no beneficiaries can be traced, see bona vacantia
Bona vacantia
Bona vacantia is a legal concept associated with property that has no owner. It exists in various jurisdictions, with consequently varying application, but with origins mostly in English law.-Canada:...
.
In the United States, each of the separate states uses its own intestacy laws to determine the ownership of its resident's intestate property.
See also
- Administration of an estate on deathAdministration of an estate on deathIn English law, Administration of an estate on death arises if the deceased is legally intestate. In United States law, the term Estate Administration is used....
- Estate PlanningEstate planningEstate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...
- Order of successionOrder of successionAn order of succession is a formula or algorithm that determines who inherits an office upon the death, resignation, or removal of its current occupant.-Monarchies and nobility:...
- TestatorTestatorA testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
- Uniform Simultaneous Death ActUniform Simultaneous Death ActThe Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance....
- Dealing with unclaimed estates