Devolution of Property

Testamentary Succession vs. Intestate Succession

When it comes to the succession of property after a person's demise, there are two primary modes of devolution: testamentary succession and intestate succession. Testamentary succession refers to the distribution of property as per the wishes stated in a valid will, while intestate succession occurs when a person dies without leaving behind a will. This blog post aims to shed light on these two modes of devolution, their key characteristics, and how they influence the distribution of property.

Testamentary Succession:

Testamentary succession, also known as succession by will, occurs when a person expresses their wishes regarding the distribution of their property through a valid will. Let's explore some important aspects of testamentary succession:

1. Execution of a Will:

To ensure the validity of a will, certain formalities must be followed, which may vary depending on the jurisdiction. Generally, a will should be in writing, signed by the testator (the person making the will), and witnessed by two or more witnesses who are not beneficiaries.

  • Writing: Generally, a will must be in writing. It can be handwritten or typed, as long as it is a tangible document.
  • Jurisdictions: the testator's mark or a digital signature may be acceptable.
  • Witnesses: Usually, the will must be witnessed by two or more individuals who are not beneficiaries under the will. Witnesses ensure that the testator is of sound mind and not under duress while making the will.
  • Attestation: The witnesses must also sign the will, acknowledging that they witnessed the testator's signature and that the testator appeared to be of sound mind.

2. Testator's Discretion:

A testator has the freedom to dispose of their property as they see fit, subject to legal limitations. They can choose the beneficiaries, determine the specific assets or shares they will receive, and even appoint an executor to oversee the distribution process. The testator can:

  • Choose Beneficiaries: The testator has the authority to designate beneficiaries who will inherit their property upon their death. These beneficiaries can include family members, friends, charitable organizations, or any other person or entity the testator wishes to include.
  • Determine Specific Assets/Shares: The testator can specify which assets or shares of their property each beneficiary will receive. This allows for customization and tailoring of the distribution according to the testator's wishes.
  • Appoint an Executor: The testator can name an executor in the will who will be responsible for administering the estate, including distributing the assets to the beneficiaries as per the testator's instructions.

3. Revocability and Amendments:

Until the death of the testator, a will can be revoked or amended. This flexibility allows individuals to adapt their testamentary wishes to changing circumstances, such as the birth of a child or the acquisition of new assets.

  • Revocation: A testator can revoke their will entirely or in part by executing a subsequent will that explicitly revokes the earlier will, destroying the will, or making a written declaration of revocation.
  • Amendments: If the testator wishes to make changes to the will, they can execute a codicil, which is a separate document specifically addressing the modifications. A codicil must also follow the formalities required for a valid will.

Intestate Succession:

Intestate succession comes into play when a person passes away without leaving behind a valid will or when the will is deemed invalid. In such cases, the distribution of the deceased person's property is determined by the laws of intestate succession, which vary depending on the applicable legal system. Let's explore some key aspects of intestate succession:

1. Legal Heirs:

In the absence of a will, the law identifies certain individuals who are entitled to inherit the deceased person's property. These individuals are referred to as legal heirs or beneficiaries.

  • Spouse: In many jurisdictions, the surviving spouse is considered a primary legal heir and is entitled to a share of the property, which may vary depending on the presence of other legal heirs.
  • Children: If the deceased had children, they are typically entitled to a share of the property. The distribution of the shares among children may vary based on the laws and the presence of other legal heirs.
  • Parents: In the absence of a spouse or children, the parents of the deceased may be entitled to inherit the property.
  • Siblings: If the deceased has no spouse, children, or parents, their siblings may become the legal heirs.

2. Statutory Distribution in Intestate Succession:

When a person passes away without a valid will or when the will is deemed invalid, the distribution of their property is governed by the laws of intestate succession. These laws are established by the relevant jurisdiction and determine the order of priority among legal heirs and the distribution of the deceased person's assets. While the specific rules may vary across jurisdictions, certain general principles can be outlined:

a. Order of Priority:

Intestate succession laws typically establish a specific order of priority among legal heirs. The order is designed to ensure that the closest relatives inherit the property. While the order of priority may differ, some common examples include:

  • Spouse: The surviving spouse is often given the highest priority as a legal heir. The laws may entitle the spouse to a specific share or prescribe different shares based on the presence of other legal heirs.
  • Children: If the deceased had children, they are usually next in line to inherit the property. In many jurisdictions, children inherit equally, while in others, the distribution may be different based on the presence of a surviving spouse or other legal heirs.
  • Parents: If there is no surviving spouse or children, the deceased person's parents may be entitled to inherit the property.
  • Siblings: In the absence of a spouse, children, or parents, the deceased person's siblings may become the legal heirs. Again, the distribution of shares among siblings may vary based on applicable laws.

It's important to note that the order of priority can differ based on jurisdiction, and some jurisdictions may have additional categories of legal heirs.

b. Distribution of Shares:

Once the order of priority is determined, the laws of intestate succession also establish the distribution of the deceased person's assets among the legal heirs. The distribution may be based on equal shares, percentages, or a combination of both, depending on the jurisdiction. Some common scenarios include:

  • Equal Distribution: In certain jurisdictions, the property is divided equally among the legal heirs within a particular category. For example, if there are three children, they would each receive an equal share.
  • Percentages: In other cases, the distribution may be based on percentages. For instance, a surviving spouse might be entitled to a specific percentage of the property, while the children receive the remaining percentage.
  • Multiple Categories: If there are multiple categories of legal heirs, such as a surviving spouse, children, and parents, the laws may prescribe specific shares for each category.

It's important to consult the relevant laws of the jurisdiction to determine the specific rules governing the distribution of property under intestate succession.

c. Representation:

Intestate succession laws often incorporate the concept of representation. Representation allows the descendants of a deceased legal heir to inherit their share. For example, if a child predeceases their parent but has children (grandchildren of the deceased person), those grandchildren may be entitled to inherit the share that their parent would have received if they were alive

3. Equal Distribution vs. Shares in Intestate Succession:

The laws of intestate succession generally aim to provide for an equitable distribution of the property among the legal heirs. The shares of each heir may vary depending on the number of heirs and their respective relationships to the deceased. The approach to distribution can vary depending on the jurisdiction, and two common methods used are equal distribution and distribution based on shares.

1. Equal Distribution:

In some jurisdictions, the laws of intestate succession prescribe equal distribution of the deceased person's property among the legal heirs within a specific category. This means that each heir within the same category receives an equal share of the estate. Here are some key aspects of equal distribution:

  • Simplicity and Fairness: Equal distribution ensures a straightforward and fair division of the estate. It treats all legal heirs within a category equally, regardless of factors such as age or need.
  • Example: Let's consider a scenario where a person dies intestate, leaving behind three children. In a jurisdiction that follows equal distribution, each child would receive an equal one-third share of the estate.
2. Distribution Based on Shares:

In many jurisdictions, the laws of intestate succession determine the distribution of the deceased person's property based on shares. This means that each legal heir may receive a specific portion or percentage of the estate, rather than an equal share. Here are some important aspects of distribution based on shares:

  • Consideration of Relationships and Proximity: Distribution based on shares takes into account the relationship of the legal heirs to the deceased and their proximity in terms of familial ties. Closer relatives may be entitled to larger shares compared to more distant relatives.
  • Adjustments for Different Categories: When there are multiple categories of legal heirs, such as surviving spouse, children, parents, and siblings, each category may have a designated share or percentage. The shares are determined based on the laws of intestate succession in the specific jurisdiction.
  • Example: Suppose a person dies intestate, leaving behind a spouse, two children, and parents. In a jurisdiction that follows distribution based on shares, the laws may prescribe, for instance, that the spouse receives 50% of the estate, each child receives 25%, and the parents receive 0%.

It's important to note that the approach to distribution—equal or based on shares—can differ based on the jurisdiction and the specific laws of intestate succession applicable in that jurisdiction. It's advisable to consult the relevant laws and seek legal guidance to understand the distribution rules that apply to a particular situation.

Understanding the concepts of testamentary succession and intestate succession is crucial in comprehending how property devolves upon the death of an individual. Testamentary succession allows individuals to express their wishes through a valid will, granting them control over the distribution of their assets. On the other hand, intestate succession applies when there is no valid will, relying on predetermined legal rules to distribute the property among the deceased person's legal heirs. Seeking legal advice and guidance in estate planning can help individuals ensure their property is distributed according to their wishes, providing peace of mind to both the testator and their beneficiaries.