Intestacy
Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration.
The concept of intestacy has a limited application in those jurisdictions that follow civil law or Roman law; in these places, the doctrine of legitime gives a deceased person's relatives title to all or a large part of the estate's propery by operation of law. This share could only be decreased on account of some very specific misconduct by the heir.
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 distinguised 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.
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 tree to the parents, the parents' siblings, and the siblings' descendants. The operation of these laws varies from one jurisdiction to another.
See also: Line of Succession; administration; Will (law)
Referenced By
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