In the law of inheritance, transmission of property or property interests of a decedent as provided by statute, as distinguished from transfer according to the decedent's will. Modern laws of intestacy, though they vary widely, share the common principle that the estate should devolve upon persons standing in some kinship relation with the decedent; modern practice tends to favour the rights of the surviving spouse.
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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.
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.
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.
Federal law controls intestacy of Native Americans.
A few states, such as Idaho, have adopted the Uniform Probate Code, but most states have their own laws. In Ohio, the law of intestate succession has been modified signifcantly 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, and has been for many years.
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:
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.