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 siblings, the parents' siblings, and the siblings' descendants. The operation of these laws varies from one jurisdiction to another.
Where an intestate dies leaving no spouse, issue, father or mother, the estate of the intestate shall go to the brothers and sisters in equal shares, and if a brother or sister is dead the children of the deceased brother or sister shall take the share their parents would have taken if living.
Where an intestate dies leaving no spouse, issue, father, mother, brother or sister, the estate of the intestate shall go to the nephews and nieces of the intestate in equal shares and in no case shall representation be admitted.
Where an intestate dies leaving no spouse, issue, father, mother, brother, sister, nephew or niece, the estate of the intestate shall be distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and in no case shall representation be admitted.
The intestate distribution scheme in Texas is derived mainly from three sections of the Probate Code: § 38 (distribution of property of an unmarried decedent and the separate property of a married decedent), § 45 (distribution of the community property of a married decedent), and § 43 (determination of the type of distribution).
If only one parent survives and the intestate is also survived by at least one sibling or a descendant of a sibling (e.g., niece or nephew), then the surviving parent receives one-half of the estate with the remaining one-half passing to the siblings and their descendants.
If the intestate was in the midst of a real estate transaction at the time of death, it may be significant to determine whether the intestate’s interest is real or personal property, especially if the intestate was married and the property is separate.
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