Intestate Distribution Scheme: Descent and Distribution Statutes

Property can be transferred in several ways when you die: intestacy, nonprobate instruments, and by will.

The intestate distribution scheme is how a decedent's property is passed to heirs according to state law, when the decedent had property that was not transferred by nonprobate means or by will, or some or all the will was invalid, or part of the will fails.

The intestate distribution scheme depends on state statutory and judicial law, which varies greatly among jurisdictions. What property falls to intestacy is also determined by jurisdiction, especially regarding ambiguities in the will, failed gifts, and other defects in the will or even in nonprobate instruments.

Intestacy is the Norm

Most people fail to pass property either by nonprobate means or through a will; hence, the property is distributed according to the state's descent and distribution law. Property also falls to intestacy if it was not included in a valid will or the will suffered other defects, such as a failed gift or ambiguities.

Heirs, Heirs Apparent, Legatees, and Expectancies

The people who receive the decedent's property under intestacy are called heirs, but before the death of the property owner, they are only heirs apparent since an heir must survive the decedent, and who remains alive to receive the property can only be known after the property owner dies. If the property is transferred by will, then the beneficiaries are called legatees, but not heirs.

An expectancy of an heir apparent is the expectation to receive property from the property owner after her death. Most children, for instance, expect to receive their parents' property after the death of both parents.

An expectancy is not a property interest because the heir apparent must survive the property owner, or the owner could devise the property to another through a will or transfer the property inter vivos.

Because an expectancy is not a property interest, it is not transferable. However, if the heir apparent agrees to transfer the property for an adequate present consideration, then most courts will enforce the agreement.

Typical Intestate Distribution

If a decedent died intestate, then the decedent's property is distributed according to the relevant state's descent and distribution statute. For personal property, the relevant state is the decedent's domicile at the time of death; for real property, the state in which the property is located.

Although states' intestacy laws vary, they all have common elements, most notably, who inherits and what percentage. Another common feature is that the descent and distribution is tiered, so that if any 1 tier below the spouse has takers, everyone in that tier takes equally all the remaining property, and no one in lower tiers takes anything.

The surviving spouse may take everything, if the decedent had no surviving issue or the issue are also issue of the surviving spouse and the decedent had no surviving parent. Otherwise, the surviving spouse takes most or all the property depending on whom else is closely related to the decedent who is still alive.

All property not passing to the spouse passes to these in equal proportions:

1. Issue (all descendants)
2. Parents
3. Issue of parents
4. Grandparents
5. Issue of grandparents

If no one is in the groups listed above, the property passes to the next-of-kin by the degree of relationship. However, the next-of-kin relationship is defined by statute, because, if you consider more remote ancestors, we are all, to some degree, related. If no heirs can be found, all the property escheats to the state.

The Uniform Probate Code (UPC §§2-102 to 2-105) takes a similar approach. However, more of the property goes to the spouse than under most state statutes, and there is no distribution to the next-of-kin under the UPC, but, instead, escheats to the state. The distribution to grandparents or issue of grandparents also differs slightly from most statutes.

If the decedent and surviving spouse live in a community property state, then the community property is divided in half, with the decedent's estate receiving half and the surviving spouse, half. If the decedent died testate, then his half of the community property is distributed according to his will. However, if he died intestate, then his half of the property is distributed according to the state's descent and distribution statute. In most cases of intestacy, all the property goes to the surviving spouse.

Real estate located in other states will be subject to the laws of that state, which may affect the rights of surviving spouses and the rules of intestacy.

Proving Relationships

The intestate distribution scheme depends on relationships. When a person dies intestate, many claimants, sometimes hundreds or even thousands, may arise. Hence, evidence must be gathered to distinguish the true relatives from the fakers. Birth certificates were traditionally used, and still are, to prove relationships. Nowadays, relationships can be proven with DNA testing, using samples collected while the person was still alive or collected from the dead body. DNA samples can even be collected from personal belongings of the deceased. However, to serve as adequate evidence in court, a documented chain of custody must be maintained, so that it can be proven that the DNA was not tampered with.

DNA from a living person can be tested from a sample collected from a swap of the mouth, so it may be prudent for you to keep a sample of your own DNA, in case someone claims to be your child, or if there is a possibility that an unknown child of yours will be born after your death.