Intestate Succession and Wills
Intestacy and will formalities
Intestate succession is the statutory default when there is no valid will or when a will fails to dispose of property. Surviving spouse and descendants usually take first, with shares and representation rules determining how descendants divide a decedent's share. Candidates must understand per stirpes (division by branch, with a deceased child's share passing to that child's descendants) versus per capita (equal division among all surviving takers at the same level), and the concept of advancement and simultaneous death rules.
Will validity
A valid will generally requires testamentary capacity, intent, proper execution (signature and witnesses or notarization as the jurisdiction requires), and absence of undue influence or fraud. Know the difference between testate (with will), intestate (without), and partially intestate (will fails to dispose of all property). Codicils amend wills; revocations can be by later instrument, physical act, or operation of law (e.g., divorce in many jurisdictions).
Traps
- A will that omits a child does not automatically fail; omitted-heir statutes vary.
- Lapse occurs when a beneficiary predeceases the testator; anti-lapse statutes may save the gift for the beneficiary's descendants.
- Ademption applies to specific gifts no longer owned at death; abatement governs what happens when the estate is insufficient.
Worked example
Testator leaves "one-half to my son A" and "one-half to my daughter B." B predeceases the testator leaving two children. Without an anti-lapse statute, B's share lapses and may pass intestate; with an anti-lapse statute, B's children take B's half by representation.