Intestacy: Wikis

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Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his 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.

Contents

History and the common law

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.

Current law

In most contemporary common-law jurisdictions, the law of intestacy is patterned after the common law of descent. Property goes first or in major part 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 usually so on further to the more remote degrees of kinship. The operation of these laws varies from one jurisdiction to another.

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England and Wales

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 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 escheats (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 [1]

United States and Canada

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.

In the United States intestacy laws vary from state to state under the American practice of federalism. 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.

Federal law controls intestacy of Native Americans.[2][3]

A few states, such as Idaho, have adopted the Uniform Probate Code, but most states have their own laws.[4] In Ohio, the law of intestate succession has been modified significantly from the common law, and has been essentially codified.[5] The state of Washington also has codified its intestacy law.[6] New York has perhaps the most complicated law of descent of distribution,[7] having been for many years.[8][9]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.[10]

In Alberta, under the current law which gives unmarried couples most of the same rights as married couples,[11] 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.[12]

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 250,000 as from February 2009), 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 450,000 goes to the spouse or partner (as from February 2009).[13] 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.

See also

Notes

  1. ^ THE TREASURY SOLICITOR BONA VACANTIA DIVISION Guide to Discretionary Grants in Estates Cases
  2. ^ USC from altlaw.org. Accessed September 2, 2008.
  3. ^ 25 U.S.C. § 2206, found at Cornell law School website. Accessed September 2, 2008.
  4. ^ MyStateWill link. Accessed February 3, 2010.
  5. ^ Ohio Codes from the official government website. Accessed September 2, 2008.
  6. ^ RCW 11.04.015, found at Revised Code of Washington from the official government website. Accessed September 2, 2008.
  7. ^ N.Y. EPTL § 4-1.1. Descent and distribution of a decedent's estate, found at MyStateWill link, Public Administrator of Queens website and the official Assembly government website (Click on EPT - Estates, Powers and Trusts, then Part 1 - RULES GOVERNING INTESTATE SUCCESSION, then § 4-1.1 Descent and distribution of a decedent's estate, see §§ 4-1.2 - Inheritance by non-marital children; 4-1.4 - Disqualification of parent to take intestate share; 4-1.5 - Other disqualifications; 4-1.6 - Disqualification of joint tenant in certain instances). Accessed September 2, 2008.
  8. ^ Samuel Watkins Eager, Descent and distribution : intestate succession in the state of New York, (Albany, N.Y. ; New York City : M. Bender & Co., 1926) found at WorldCat website. Accessed September 2, 2008.
  9. ^ Links to NEW YORK PROBATE, TRUSTS, WILLS & ESTATES LAW at MegaLaw.com. Accessed September 2, 2008.
  10. ^ Florida Intestacy Law
  11. ^ http://www.canlii.org/en/ab/laws/stat/sa-2002-c-a-4.5/latest/sa-2002-c-a-4.5.html
  12. ^ http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-i-10/latest/rsa-2000-c-i-10.html
  13. ^ Family Provision (Intestate Succession) Order 2009 (S.I. 2009 No. 135)

References


1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

INTESTACY (Lat. intestatus, one who has not made a will, from testari, to bear witness), the condition of the property of a person who dies without making a will. Here the law of England distinguishes sharply between his real and his personal property. The devolution of the former is regulated by the rules of inheritance. The destination of the latter is marked out by the Statute of Distributions. The proper conditions of a testamentary disposition of property will be found under the heading Will.

The distribution of an intestate's personal property is carried out under the authority of administrators, whose duties are generally the same as those of executors under a will. Administration was until 1857 a matter cognizable by the ecclesiastical courts, and the ordinary was in fact the administrator until the passing of an act of Edward III. for administration upon intestacy (1357). An earlier statute (Westminster 2, 1275), directed against the abuses of the system, required the ordinary, instead of applying the residue of the estate to "pious uses," to pay the debts of the intestate. The act of Edward III. went further in providing that "in case where a man dieth intestate, the ordinaries shall depute of the next and most lawful friends of the dead person intestate to administer his goods," with power to sue for debts due to the deceased, and under obligation to pay debts due by him, and to answer to the ordinary like executors in the case of testament. Administrators remained ,on this footing of deputies appointed by the ordinary until the Probate Act 1857 transferred the jurisdiction in administration of the ecclesiastical courts to the new court of probate. The courts of law having held that by the grant of administration the authority of the ecclesiastical courts was exhausted, the administrator became entitled to the privilege, similar to that formerly enjoyed by the ordinary, of dealing as he pleased with residue of the property. The next of kin of the same degree of relationship to the deceased were thus aggrieved by the preference of the administrator, and it was to remedy this grievance that the Statute of Distributions 1670/I was passed. It empowered the ordinary to take a bond from the administrator binding him to make a fair and complete distribution of the property among the next of kin. Such distribution is to be in the following manner: one-third to the wife of the intestate, and all the residue by equal portions to and amongst the children, and their representatives if any of such children be dead, exclusive of children who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portions equal to the shares allotted to the other children under the distribution. If such advancement should be less than the share of the other children in distribution, then it shall be made equal thereto. But the "heir-at-law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in distribution with the rest of the children" (§ 5). By § 6, if there be no children nor any legal representatives of children, one moiety of the property is to be allotted to the wife of the intestate, the residue "to be distributed equally to any of the next of kindred of the intestate who are equal in degree. and those who legally represent them." By § 7 there shall "be no representation admitted among collaterals after brothers' and sisters' children; and in case there be no wife, then all the said estate to be distributed equally to and among the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid, and in no other manner whatsoever." For the protection of creditors it is enacted that there shall be no distribution till a full year after the intestate's death, and if any debts should be discovered after distribution, the persons sharing the estate shall refund the amount of the same ratably. With reference to the above rules the following points may be observed: (1) The husband's absolute right to administer his wife's estate is not affected by the act. This was made clear by a later act of the same reign (The Statute of Frauds 1677). Administration is now granted to the representatives of the husband where he has died without taking out administration to his wife, unless it can be shown that the wife's next of kin are beneficially interested. (2) The widow, in the event of there being no children or next of kin, takes only her half. The other half goes to the crown. The widow's rights, however, have been enlarged by the Intestate Estates Act 1890. By this act where a man dies wholly intestate and without issue, his property, both real and personal, shall, if it does not exceed £500 in net value, belong to his widow absolutely. If the estate exceeds £500 net, the widow is entitled to £50o out of the estate and has a charge for that amount upon the real and personal property of the deceased. (3) The child or children take equally, two-thirds if the widow be alive, and the whole if she be dead. If some of the children be alive and some dead having issue, then such issue will take their parents' share equally among themselves. There has been some difference of opinion as to whether if all the children have predeceased their parent but have left issue, such grandchildren take as between themselves per stirpes as, representatives of their parent or per capita as next of kin. Thus if A and B predecease their father but A leaves three children and B one, should the property be divided into fourths, or first into moieties and then one moiety subdivided into thirds among A's children and the other moiety be given undivided to B's child ? It is now settled that the latter method of distribution is the correct one, and it is thought that this will also apply when only great-grandchildren are alive. (4) The next of kin must be ascertained according to the rules of consanguinity, which are the same in English as in the civil law. Degree is calculated from the intestate, through the common ancestor if any, to the kindred. Thus from son to father is one degree, to grandfather two degress, to brother two degrees, to uncle three degrees, and so on. The statute ordains distribution to be made "to the next of kindred in equal degrees pro suo claque jure, according to the laws in such cases and the rules and limitations hereafter set down." Equality in degree is therefore not in all cases accompanied by equality in rights of succession. Neglecting the cases of wife and children already noticed, the father excludes all other next of kin. So would a mother, in default of a father surviving, but an act of 1685 enacted that in such a case the brothers and sisters, and children of brothers and sisters, of the intestate should share equally with the mother. In the absence of brothers or sisters and their representatives, the mother in the case supposed would take the whole. Mothers-in-law and stepmothers are not within the rules of consanguinity. As between a brother and a grandfather who are both in the second degree, preference is given to the brother; but a grandfather, being in the second degree, will exclude an uncle, who is in the third. An uncle and a nephew, both being in the third degree, take together. Brothers or sisters of the half blood take equally with brothers and sisters of the whole blood. The rule which prohibits representation after brothers' and sisters' children would, in a case where the next of kin were uncles or nephews, wholly exclude the children of a deceased uncle or nephew. Also, as between the son of a brother and the grandson of a brother, the latter would not be admitted by representation. Where a brother and the children of a deceased brother are the next of kin, they will take per stirpes, i.e. the brother will take one half, and the children of the other brother will take the other half between them. When the next of kin are all children of the deceased brothers or sisters, they will take equally per capita. Subject to these modifications, the personal property will be divided equally among the next of kin of equal degree, e.g. great-grandfathers would share with uncles or aunts, as being in the third degree. Failing next of kin, under these rules, the estate goes to the crown as ultimus haeres, a result which is more likely to happen in the case of illegitimate persons than in any other.

Personal or movable property takes its legal character from the domicile of the owner, and the distribution of an intestate's goods is therefore regulated by the law of the country in which the intestate was domiciled. A domiciled Scotsman, for example, dies intestate in England, leaving personal property in England; the administrator appointed by the court of probate will be bound to distribute the property according to the Scots rules of succession.

In the law of Scotland the free movable estate of the intestate is divided amongst the nearest of kin, the full blood excluding the half blood, and neither mother nor maternal relations being originally admitted. The heir of the heritable (i.e. real) property if one of the next of kin must collate with the next of kin if he wishes to share in the movables. Proximity of kin is reckoned in the same order as in the case of inheritance. The Intestate Movable Succession Act 1855 among other changes allows the issue of a predeceasing next of kin to come in the place of their parent in succession to an intestate, gives the father of an intestate dying without issue one-half of the movable property in preference to brothers and sisters, and to the mother if the feather be dead a similar preference to the extent of one-third, and admits brothers and sisters uterine in the absence of brothers and sisters german or consanguinean.

In the United States the English Statute of Distribution has been taken as the basis of the law for the distribution of personal property in intestacy, and its principles have been applied to real property also. "In a majority of the states the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English Statute of Distribution. In Georgia the real and personal property of the intestate is considered as altogether of the same nature and upon the same footing." There are many states, however, in which the distribution differs materially from the English statute. In Illinois the distribution is the same as descent of real property. In Alabama the whole goes to the widow if there are no children (Phillips v. Lowing, 1907, 43 Southern Rep. 494) In many states the husband's share is in all cases like the widow's, as in Texas, New York and Washington. In Pennsylvania he takes an equal share with the children.

The statutes of each state of the American union must be consulted, as no general rules can be laid down. As to the right to the intestate's interest in community property in the states where the law of "community" - of "acquets and gains" - prevails, see Inheritance.


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