Intestacy: Difference between revisions
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An "intestate account," describes an account in which a person died without a will. This normally happens when there is only one beneficiary to the estate, but may happen when those who might be beneficiaries trust the Administrator's decisions. |
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{{Redirect-distinguish|Intestate|Interstate}} |
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{{lead too short|date=September 2010}} |
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{{Wills, trusts, estates}} |
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'''Intestacy''' is the condition of the [[estate (law)|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 (law)|will]] or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate." |
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http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+64.1-1 |
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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]]. |
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==History and the common law== |
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Intestacy has a limited application in those jurisdictions that follow [[civil law (legal system)|civil law]] or [[Roman law]] because the concept of a will is itself less important; the doctrine of [[forced heirship]] automatically gives a deceased person's [[next-of-kin]] title to a large part (forced estate) of the estate's property [[by operation of law]], beyond the power of the deceased person to defeat or exceed by testamentary gift. A forced share (or [[legitime]]) can often only be decreased on account of some very specific misconduct by the forced [[heir]]. In matters of cross-border inheritance, 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. |
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After the [[Statute]] of Wills, 32 [[Henry VIII of England|Henry VIII]] c. 1, [[England|Englishmen]] (and unmarried or widowed women) could dispose of their lands and [[real property]] by a ''will''. Their [[personal property]] could formerly be disposed of by a ''testament'', hence the hallowed legal [[merism]] ''last will and testament''. |
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Common law sharply distinguished between [[real property]] and [[chattel]]s. 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. |
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==Current law== |
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In most contemporary common-law [[jurisdiction]]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. |
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===England and Wales=== |
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In [[England and Wales]] the Intestacy Rules have been uniform since 1925 and similar rules apply in [[Northern Ireland]], the [[Republic of Ireland]] and many [[Commonwealth of Nations|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. |
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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.<ref>[http://www.bonavacantia.gov.uk/output/discretionary-grants-in-estates-cases.aspx THE TREASURY SOLICITOR BONA VACANTIA DIVISION Guide to Discretionary Grants in Estates Cases]</ref> |
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Under the current rules, the spouse or civil partner of someone who dies intestate will inherit as follows: |
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* If there are no children, grandchildren, or great-grandchildren then the spouse or civil partner inherits all personal belongings of the deceased, the first £450,000 of the estate and half of the amount above £450,000. |
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* If there are children, grandchildren, or great-grandchildren then the spouse or civil partner inherits all personal belongings of the deceased, the first £250,000 of the estate and a lifetime's interest in half of the amount above £250,000. A lifetime's interest means that the inheritor cannot sell or dispose of that part of the inheritance, but can draw interest from investing it. The capital amount may then be passed to the descendants on death of the spouse or civil partner.<ref>[http://www.sellerslegal.co.uk/what-is-a-will]</ref><ref>http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm#what_are_the_rules_of_intestacy</ref> |
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===United States and Canada === |
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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. |
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Attempts in the United States to make the law with respect to intestate succession uniform from state to state have met with limited success.<!--add link to UPC locator site--> |
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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. |
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Federal law controls intestacy of [[Native Americans in the United States|Native Americans]].<ref>[http://www.altlaw.org/v1/codes/us/598709 USC from altlaw.org]. Accessed September 2, 2008.</ref><ref>25 U.S.C. § 2206, found at [http://www4.law.cornell.edu/uscode/html/uscode25/usc_sec_25_00002206----000-.html Cornell law School website]. Accessed September 2, 2008.</ref> |
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Many states have adopted all or part of the [[Uniform Probate Code]], but often with local variations,<ref>[http://www.nccusl.org/Shared/Docs/UPC/UPC%20Chart.pdf Excerpt from “Record of Passage of Uniform and Model Acts, as of September 30, 2010*” especially with respect to administration.]</ref> In [[Ohio]], the law of intestate succession has been modified significantly from the common law, and has been essentially codified.<ref>[http://codes.ohio.gov/orc/2105 Ohio Codes from the official government website]. Accessed September 2, 2008.</ref> The state of [[Washington (U.S. state)|Washington]] also has codified its intestacy law.<ref>RCW 11.04.015, found at [http://apps.leg.wa.gov/RCW/default.aspx?Cite=11.04.015 Revised Code of Washington from the official government website]. Accessed September 2, 2008.</ref> [[New York]] has perhaps the most complicated law of descent of distribution,<ref>N.Y. EPTL § 4-1.1. Descent and distribution of a decedent's estate, found at [http://www.mystatewill.com/statutes/ny_law.htm MyStateWill link], [http://www.queenscountypa.com/documents/article4_sec411.asp Public Administrator of Queens website] and [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS the official Assembly government website] (Click on EPT - Estates, Powers and Trusts, then |
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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.</ref> having been for many years.<ref>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 [http://www.worldcat.org/oclc/5514327?tab=details WorldCat website]. Accessed September 2, 2008.</ref><ref>[http://www.megalaw.com/ny/top/nyprobate.php Links to NEW YORK PROBATE, TRUSTS, WILLS & ESTATES LAW at MegaLaw.com]. Accessed September 2, 2008.</ref> 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.<ref>[http://www.floridaprobatetrustlaw.com/2009/12/articles/probate/florida-inheritance-laws-no-will/ Florida Intestacy Law]</ref> |
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In [[Alberta]], under the [[Adult interdependent relationship in Alberta|current law]] which gives unmarried couples most of the same rights as married couples,<ref>http://www.canlii.org/en/ab/laws/stat/sa-2002-c-a-4.5/latest/sa-2002-c-a-4.5.html</ref> |
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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.<ref>http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-i-10/latest/rsa-2000-c-i-10.html</ref> |
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==Rules== |
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Where a person dies without leaving a will, the rules of succession of the person's place of [[habitual residence]] or of their [[Domicile (law)|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 heir]]ship'' 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. |
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In [[England and Wales]], the rules of succession are the Intestacy Rules set out in the [[Administration of Estates Act]] and associated legislation. |
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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 [[civil partnership in the United Kingdom|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).<ref>Family Provision (Intestate Succession) Order 2009 (S.I. 2009 No. 135)</ref> Such transfers below the threshold are exempt from UK [[inheritance tax]]. |
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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: |
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*all property passing to them by survivorship (such as the deceased's share in the jointly owned family home); |
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*all property passing to them under the terms of a trust (such as a life insurance policy); |
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*a statutory legacy of a fixed sum (being a larger sum where the deceased left no children); and |
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*a life interest in half of the remaining estate. |
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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]]. |
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In the United States, each of the separate states uses its own intestacy laws to determine the ownership of its resident's intestate property. |
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==See also== |
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*[[Administration of an estate on death]] |
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*[[Estate Planning]] |
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*[[Order of succession]] |
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*[[Testator]] |
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*[[Uniform Simultaneous Death Act]] |
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==Notes== |
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{{reflist}} |
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==References== |
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* [http://www.answers.com/topic/descent-and-distribution "Descent and distribution" from Answers.com] |
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* [http://legal-dictionary.thefreedictionary.com/descent%20and%20distribution "Descent and distribution" from The Free Dictionary] |
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* [http://www.stcl.edu/faculty-dir/jenkins/wills-and-trusts/sld001.htm Wills and Trusts outline by Professor Jenkins, South Texas College of Law] |
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* [http://www.makingawill.org.uk/why-make-a-will.htm#8 Laws of Intestacy in the UK] |
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* [http://law.jrank.org/pages/6105/Descent-Distribution.html "Descent and distribution" from law.jrank.org] |
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* [http://www.proylaw.com/intestate.html A sample "intestate will" from Proylaw.com] |
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[[Category:Common law]] |
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[[Category:Legal history]] |
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[[Category:Wills and trusts]] |
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[[ca:Abintestat]] |
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[[cs:Dědici ze zákona]] |
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[[de:Gesetzliche Erbfolge]] |
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[[es:Sucesión intestada]] |
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[[ko:무유언]] |
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[[pl:Dziedziczenie ustawowe]] |
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Revision as of 21:30, 17 September 2012
An "intestate account," describes an account in which a person died without a will. This normally happens when there is only one beneficiary to the estate, but may happen when those who might be beneficiaries trust the Administrator's decisions.