Descent and Distribution

Author:Jeffrey Lehman, Shirelle Phelps

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The area of law that pertains to the transfer of real property or PERSONAL PROPERTY of a decedent who failed to leave a will or make a valid will and

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the rights and liabilities of heirs, next of kin, and distributees who are entitled to a share of the property.

Origin of the Law

The passage of property from ancestors to children has been recognized and enforced since biblical times. As a general rule, the law, and not the deceased person, confers the right of succession?the passing of title to a decedent's property?and determines who shall take intestate property. In the United States, such law is derived from the CIVIL LAW and English statutes of distributions, rather than from the COMMON LAW, which preferred the eldest male, under the doctrine of primogeniture, and males over females. Statutes in every state prescribe the order in which persons succeed to a decedent's property if he or she dies intestate, which means without a lawfully executed will. These statutes provide for an orderly administration by identifying successors to a decedent's, also called an intestate's, estate. They seek to implement the distribution that most intestates would have provided had they made wills, on the theory that most persons prefer that their property pass to their nearest relatives rather than to more remote ones. An order of preference among certain relatives of the deceased is established by the statute. If there are no relatives who can inherit the property, the estate escheats, or reverts, to the state.

Persons Entitled

The terms heirs, next of kin, and distributees usually refer to the persons who by operation of law?the application of the established rules of law?inherit or succeed to the property of a person intestate on his or her death. Statutes generally confer rights of inheritance only on blood relatives, adopted children, adoptive parents, and the surviving spouse. Line of descent is the order or series of persons who have descended one from the other or all from a common ancestor, placed in a line in the order of their birth showing the connection of all blood relatives. The direct line of descent involves persons who are directly descended from the same ancestor, such as father and son, or grandfather and grandson. Whether an adopted child can be regarded as in the direct line of descent depends upon the law in the particular jurisdiction. The collateral line of descent involves persons who are descended from a common ancestor, such as brothers who share the same father or cousins who have the same grandfather. Title by descent differs from title by purchase because descent involves the operation of law, while purchase involves the act or agreement of the parties. Usually direct descendants have first preference in the order of succession, followed by ascendants (persons in the collateral line of ascent), and finally, collateral heirs. Each generation is called a degree in determining the consanguinity, or blood relationship, of one or more persons to an intestate. Where the next of kin of the intestate who are entitled to share in the estate are in equal degree to the deceased, such as children, they share equally in the estate. For example, consider a mother who has two daughters, her only living relations, and dies intestate, leaving an estate of $100,000. Since the two daughters occupy the same proximity of blood relationship to their mother, they share her estate equally, each inheriting $50,000.

Issue has been defined as all persons in the line of descent without regard to the degree of nearness or remoteness from the original source.

Law Governing

If at the time of death, the intestate's estate is located in the state of his or her domicile or permanent residence, the law of that state will govern its descent and distribution. Local laws that govern the area where the property is located generally determine the descent of real property, such as land, houses, and farms, regardless of the domicile of the deceased owner. The succession to and the disposition and distribution of personal or movable property, wherever situated, are governed by the law of the domicile of the owner or intestate at the time of death, unless a statute in the state where the property is located provides otherwise.

Since the privilege of receiving property by inheritance is not a natural right but a creation of law, the legislature of a state has plenary power, or complete authority, over the descent and distribution of property within the borders of the state subject to restrictions found in constitutions and treaties. The disposition of the property of an intestate is governed by the statutes in force at the time of death.

Property Subject to Descent and Distribution

As a general rule, property subject to descent and distribution includes all vested rights and interests owned by the deceased at the time of

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death. However, rights or interests that are personal to the deceased, and not of an inheritable nature, ordinarily are not subject to descent and distribution. Examples are a personal right to use land or a statutory right to contest a will.

If a seller dies prior to the completion of the sale of real property, the legal title to land that the seller contracted to sell vests in the heirs at law on the owner's death, subject to their obligation to convey the land to the purchaser according to the contract. A few states authorize the distribution of property among different persons according to whether it is real or personal, but this is not the general rule.

Representation, Per Stirpes, Per Capita

Representation is the principle of law by which the children, or their descendants, of an heir to an estate, who dies without leaving a will, have a collective interest in the intestate's share of the property. Taking by representation means taking per stirpes. For example, Robert, who only has two daughters, Ellen and Pam, dies intestate, leaving an estate of $200,000 after the payment of debts and charges. Under a typical statute, Robert's daughters are his distributees, each receiving $100,000. However, Ellen predeceases her father and leaves two sons, David and George. Since Ellen is not alive to take her share, there would be a per stirpes division of Robert's estate, which means that Ellen's share of $100,000 would be divided equally between David and George, and each would receive $50,000. Pam's $100,000 share of her father's estate remains unaffected. Since they are brothers, the degree of blood relationship between David and George is equal; therefore, they take per capita, or equal, parts of Ellen's share. However, they have taken per stirpes shares of Robert's estate. Assume that George also died before his grandfather and left two daughters, Ruth and Janet, but his brother David was still alive. David would take $50,000, but Ruth and Janet would have $25,000 apiece. Pam, who is still alive, would still be entitled to $100,000, her share of Robert's estate. The degrees of consanguinity among David and Ruth and Janet are unequal, since David is Robert's grandchild, while Ruth and Janet are his great-grandchildren. David and Ruth and Janet share Ellen's portion of Robert's estate per stirpes. David takes 50 percent, or $50,000, whereas Ruth and Janet each take 25 percent, or $25,000, because of the unequal degrees of blood relationship to Ellen. David is one generation removed from Ellen, while Ruth and Janet are two generations removed from her.

Kindred of the Half Blood

The term kindred of the half blood refers to persons who share a half blood relationship with the intestate because they have only one parent in common with each other. As a general rule, kindred of the half blood inherit equally with kindred of the whole blood who have the same parents, unless expressly prohibited by statute. For example, A and B shared the same father with C and D but had a different mother. If A dies, leaving no surviving spouse, children, or parents, C and D share equally with B in A's estate, even though C and D were of the half blood in relation to A, since they had only one parent in common. C and D inherit as if they had both the same parents as A and B.

Necessary or Forced Heirs

The law of forced heirship gave certain relatives, besides the spouse, an absolute legal right, of which they could not be deprived by will or gift, to inherit a certain portion of the decedent's estate. Ordinarily, a person has no right to prevent another from disposing of his or her property by gift or will to someone else. The law of forced heirship in effect in only Louisiana limits the disposition of a decedent's property if his or her parents or legitimate children or their descendants are alive at his...

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