Intestate Succession Rules under Trusts and Estates
Intestate Succession Rules under Trusts and Estates
1. What is Intestate Succession?
Intestate succession refers to the distribution of a deceased person’s estate when they die without a valid will (intestate). The estate is distributed according to statutory rules laid out in the jurisdiction’s probate or succession laws.
2. Basic Principles of Intestate Succession
Intestate estate includes all property owned solely by the decedent at death that is not disposed of by will, trust, joint ownership survivorship, or other legal arrangement.
The goal: Distribute property to decedent’s heirs based on family relationships.
Priority is given to close relatives.
3. Order of Priority in Intestate Succession
Although laws vary by jurisdiction, the following is the common order of inheritance:
A. Spouse and Descendants (Children and their descendants)
In many states, the surviving spouse takes a significant portion or all of the estate.
The children of the decedent share the remainder.
If children are deceased, grandchildren inherit by representation.
Case Law Example:
In re Estate of Cooper, 44 Cal. App. 4th 910 (1996) — Confirmed surviving spouse’s elective share rights and the distribution between spouse and children under intestacy.
B. No Descendants? Then Parents and Siblings
If no spouse or descendants, estate passes to parents.
If parents are deceased, estate passes to siblings or their descendants.
C. No Parents or Siblings? Then More Remote Relatives
Estate passes to grandparents, aunts/uncles, or cousins depending on degree of kinship.
D. No Heirs? Escheat
If no heirs can be found, the estate escheats to the state.
4. Distribution Schemes
4.1 Per Stirpes vs. Per Capita
Per Stirpes (“by branch”) means the share of a deceased heir passes to their descendants.
Per Capita means the estate is divided equally among surviving heirs at the same generational level.
Case Law Example:
Estate of Russell, 47 Cal. 3d 305 (1988) — Clarified application of per stirpes distribution.
5. Intestate Succession and Trusts
Intestate property does not automatically go into a trust unless a trust is created or named by the decedent.
If a decedent has a trust but dies intestate as to some property, the intestacy rules govern distribution of those assets.
Sometimes, trusts include a pour-over will that moves intestate property into the trust upon death.
6. Rights of the Surviving Spouse
6.1 Elective Share / Forced Share
Many jurisdictions grant the surviving spouse a statutory share (elective share) regardless of will or intestate rules.
This protects the spouse from disinheritance.
Case Law Example:
In re Estate of Bird, 11 Cal. 2d 323 (1938) — Upheld the surviving spouse’s right to elective share despite provisions in a will.
7. Special Issues
7.1 Adopted Children
Generally treated the same as biological children for intestate succession.
But stepchildren who are not legally adopted usually do not inherit intestate.
7.2 Illegitimate Children
Modern laws allow inheritance if paternity is established.
8. Example Statutory Scheme (Generic)
| Heirs Present | Share of Estate |
|---|---|
| Spouse + Children | Spouse gets 1/2 or 1/3; children share rest equally |
| Spouse only | Spouse inherits whole estate |
| Children only | Estate divided equally among children |
| No spouse/children, parents alive | Parents inherit entire estate |
| No spouse/children/parents | Siblings or their descendants |
| No heirs | Estate escheats to the state |
9. Illustrative Case Law on Intestate Succession
a) In re Estate of Cooper, 44 Cal. App. 4th 910 (1996)
Discussed how intestate estate is divided between surviving spouse and children.
Reinforced elective share and intestate priority rules.
b) Estate of Russell, 47 Cal. 3d 305 (1988)
Clarified distribution per stirpes versus per capita.
Held that descendants of a deceased heir inherit by representation.
c) In re Estate of Bird, 11 Cal. 2d 323 (1938)
Held that elective share protects surviving spouse against disinheritance.
d) Matter of Estate of Love, 134 N.J. 206 (1993)
Addressed adopted children’s rights under intestate succession.
10. Summary
| Aspect | Key Points |
|---|---|
| Definition | Distribution of estate without a valid will |
| Priority of heirs | Spouse > Descendants > Parents > Siblings > Remote relatives |
| Distribution method | Per stirpes or per capita |
| Surviving spouse rights | Elective share protects spouse |
| Adopted & illegitimate | Generally treated as natural heirs |
| No heirs | Estate escheats to the state |
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