Intestate, Intestacy and Dying Intestate

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”. When we talk about “intestate succession statutes,” we’re referring to the body of common law that establishes who is eligible to inherit a person’s assets after their death, also known as “intestate succession law.”

A will is less important in jurisdictions that follow civil law or Roman law, and the doctrine of legitime gives a deceased person’s relatives title to all or a large portion of the estate’s property by operation of law, beyond the deceased person’s ability to alter by legacy. Intestacy has a limited application in these jurisdictions.

Only very specific acts of wrongdoing by the heir can reduce this portion of the estate’s value. The term “laws of succession” is commonly used to refer to the devolution of estates in an international setting, which includes both testate and intestate estates as well as compulsory heirship rules in civil law and Sharia law nations.

Until the Statute of Wills, enacted in 32 Henry VIII c.1, Englishmen (including single or widowed women) couldn’t leave their estates to the next of kin. It used to be possible to dispose of one’s personal property through a “testament,” which is why the phrase “Last Will and Testament” is so revered.

Common law strongly divided 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 regulation became obsolete as England changed from being a feudal to a commercial culture, and chattels more valuable than land were being accumulated by citizens.

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.