User Contributed Dictionary
Noun
intestacyReferences
Extensive Definition
Intestacy is the condition of the estate of a
person who dies owning property greater than the sum of his or her
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 common law
that determines who is entitled to the property from the estate
under the rules of inheritance.
The concept of intestacy has a limited
application in those jurisdictions that follow civil
law 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.
In most contemporary common-law jurisdictions, the law of
intestacy is patterned after the common law of descent. Property
goes first to a spouse, then to children 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 sometimes further to the more remote degrees of
kinship. The operation of these laws varies from one jurisdiction
to another. Attempts in the United
States to make the law with respect to intestate succession
uniform from state to state have met with limited success.
In England
and Wales 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 1989
Inheritance (Provision for Dependants) Act in relation to
persons domiciled in any of the jurisdictions making up the
United
Kingdom 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 escheats (i.e. is legally
assigned) to the government.
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.
In the United States, intestacy laws vary from
state to state under the American practice of federalism. 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.
Rules
Where a person dies without leaving a will, the rules of succession of the person's place of habitual residence or of their domicile apply. In certain jurisdictions such as France, Switzerland 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 (GBP 125,000 as at
2008), the whole of the estate will pass to the deceased's spouse
or, from late 2005, their
registered civil partner. For persons with no surviving
children but surviving close relatives (e.g. siblings or parents),
the first GBP 200,000 goes to the spouse or partner (as at 2008).
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:
- 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.
In the United States, each of the separate states
uses its own intestacy laws to determine the ownership of its
resident's intestate property. While a summary of all the
differences between these laws is difficult, a series of
interactive programs that demonstrate the distributions according
to the individual laws of specific states is found at MyStateWill.com