The Law of Succession

When a decedent does not provide for distribution of probate property by will, it is up to the state to create a property distribution scheme. In most states, intestacy statutes accomplish this — they are the legislature's plan for distributing your property after death.

The term intestacy means “without a will.” In a very broad sense, a person who dies without a will is intestate. The distribution of the intestate's property depends on the type of ownership. Property held as joint tenants with right of survivorship passes to the joint tenant. Property owned by the intestate alone passes according to the intestacy statutes. Nonprobate assets are transferred according to the type of ownership; probate assets are transferred according to the intestacy statutes. The intestacy statutes govern the distribution of any probate asset that is not effectively disposed of by a will.

The intestacy statutes have another function. Assume the testator prepares a will disposing of certain pieces of property and bequeathing “the rest, remainder, and residue of my estate to my heirs at law.” Who are the heirs of the testator? What if the testator leaves his entire estate to his son, but his son predeceases him? How can the court distribute the estate? In both cases, the court can turn to the intestacy statutes. These statutes define who is an heir and provide a clear path of distribution where a designated recipient is no longer alive to receive the gift.

The Uniform Probate Code establishes hierarchy for the distribution of a decedent's property. The hierarchy of distribution is:

  • Nonprobate dispositions of property control whether there is a valid will or not, subject to certain rights of the spouse of the decedent

  • Dispositions of probate property made under a valid will

  • Intestate succession of all other property

A Special Priority Issue: The “Augmented Estate”

Ordinarily, the nonprobate forms of ownership control the distribution of property after death. Some forms of property, however, are considered a part of the probate estate for purposes of determining the extent of spousal rights in the decedent's estate. This grouping of property is known as the augmented estate. The augmented estate consists of the probate property of the decedent and certain nonprobate assets defined by the statute.


The augmented estate does not supercede the nonprobate distribution of assets — it simply includes the value of certain assets in the calculation of the elective share percentage of the intestate estate. By making the total value of the estate larger, the elective share (usually defined as a percentage of the probate estate) also becomes larger. Thus, the augmented estate prevents one spouse from disinheriting the other by placing all significant assets in non-probate forms of ownership.

The augmented estate is a mechanism for assuring that a fair share of the estate is transferred to the decedent's spouse. The Uniform Probate Code allows a spouse dissatisfied with the distribution chosen by the decedent to override that distribution. The spouse may substitute an “elective share” of the estate for the distribution chosen by the decedent. The elective share is based on a percentage of the augmented estate, the length of the marriage, and other factors.

The calculation of the precise amount of the elective share is very complex and requires a detailed examination of the property owned by the decedent and the forms of ownership utilized. Often, the task of identifying the property subject to the augmented estate calculations is delegated to the probate paralegal.

Distribution of Intestate Property

Intestacy statutes provide for distribution of property according to the nearness of the relationship to the decedent. Property is distributed to those persons in direct relationship to the decedent by right of representation. The right of representation allows the distribution of property among multiple descendants, often of different generations. The allocation of property by right of representation is made by one of three methods:

  • If the descendants are issue of the decedent (direct lineal descendants), the estate is divided into equal shares at the first generation below the decedent, regardless of whether there is any person alive in that generation.

  • After direct lineal descendants of the decedent, the next in line for distribution are the decedent's parents. If they have predeceased the decedent, the right of representation divides the estate into equal shares at the first generation where there are one or more living descendants.

  • Where the intestate distribution scheme progresses to the decedent's grandparents, the right of representation varies slightly. Instead of distributing equally at the point where a living descendant is discovered, the entire estate is distributed among the first level containing living descendants.

Problems with Intestate Succession

There are a number of problems with intestacy succession. Aside from the complex distribution schemes caused by augmented estates, exempt property, and rights of representation, the intestacy statutes do not reflect the wishes of the decedent.

The intestacy statutes have no conscience. They do not care where the property came from or if it has sentimental or other value to persons not in the scheme of distribution. The intestacy statutes divide everything equally without regard to any special need of the heirs. No deferred payments are allowed — the child of six receives his share immediately, just as a child of twenty-six. Finally, the intestacy statutes make no provision for special bequests.

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