Duhaime's Law Dictionary


Intestate Definition:

Dying without a will.

Related Terms: Will, Parentelic

Dying without a will or with a will, but defective in form and thereby inoperative, making the estate effectively intestate.

Derived from the Latin word intestatus for one who dies without a will.

Used to refer to a person who dies without a willl (an intestate) or the estate of property belonging to a person who dies without a will, as in an "intestate estate".

In ancient common law, the word also captured thosw who died with a will but the executors refusing to act. Further, in common law history, the belongings of a person who died intestate reverted to either the King or to the intestate's lord.

Almost all jurisdictions have enacted statutes that provide for a rasonable distribution of a person who dies intestate, generally focusing on persons who are presumed to have been dependents of the deceased.

Montana, for example, provides as follows for the spouse, in the event that her/his spouse dies intestate:

"The intestate share of a decedent's surviving spouse is:

  • The entire intestate estate if no descendant or parent of the decedent survives the decedent; or all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
  • The first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent but a parent of the decedent survives the decedent;
  • The first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
  • The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse."

For an example of intestate distribution in Canada, see Part 10 of BC's Estate Administration Act (published at qp.gov.bc.ca/statreg/stat/E/96122_01.htm#part10) or Part 2 of Ontario's Succession Law Reform Act, RSO 1990 Chapter S-26, published at canlii.com/on/laws/sta/s-26/index.html.


References or further reading:

• Thomas Blount, Nomolexicon: A Law Dictionary Interpreting Such Difficult and Obscure Words and Terms as are Found Either in our Common or Statute, Ancient or Modern Lawes , 1670.

• Thomas Carte, General History of England, Volume I, page 483 (1747).

Montana Code 2007, Title 72 (Probate), Chapter 2, Part 1, ¶112 (published at data.opi.state.mt.us/bills/mca/72/2/72-2-112.htm).


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