intestacy

Definition of intestacy

Noun

intestacy (plural intestacies)

1. The state of being intestate, or of dying without having made a valid will.

Further reading

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.

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.

- 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.

- United States and Canada

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.

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.