When a person dies without a will, or without a valid will, as many citizens do, the law provides for a certain entitlement to the estate based, for the most part, on common sense.

The intestacy ranking follows common sense

The law-makers give it their best shot at guessing who the person would of wanted to give his/her property to. In other words, to the spouse and children or to other near relatives in the event that there is no spouse or children.

Intestacy is the short little Latin word that is ubiquitous in probate law to refer to the estate for which there is no will to dictate the distribution.

The individual dying without a will is known as the intestate; the lawyer then speaking of "John Smith dying intestate".

Intestacy, as the crude expression goes, and like other substances known to man, happens.

Sometimes, a will might be present but the distribution so vague that the will itself is fine as far as other things go such as the appointment of executor, but the distribution not being understandable, cannot be acted upon and so even though there is a will, the distribution proceeds on an intestacy basis.

intestacy pecking orderDying without a will is not always intended. For example, a person might get married and may find that in their jurisdiction, a marriage automatically nullifies any existing wills. The newlywed may have every intention of writing a new will in the context of the marriage but might die before they have time to do so.

And, as Stan Rule explained in his 2006 article:

"A will is not the only way to dispose of your assets on death. If you have designated beneficiaries of your life insurance policies, Registered Retirement Savings Plans or Registered Retirement Income Funds, the proceeds may flow to the designated beneficiaries even if you do not have a will. Similarly, assets held in a joint tenancy may pass to the survivor on your death outside of your estate. You can also hold assets in a trust that provides who receives the assets on your death."

Jurisdictions differ on points of detail

Rare is the jurisdiction that does not have a specific statute that sets out the distribution of the estate in the event that a deceased did not leave a will. Those statutes are sometimes stand-alone statutes known by such self-explanatory names as:

On other occasions, the intestacy provisions are couched inside of more comprehensive probate statutes. This is the case in British Columbia, for example, where that jurisdiction attempts to codify estate administration law as it includes, at Part 10 of the Estate Administration Act, "Distribution of Intestate Estate". (Curiously, British Colombia has a separate Wills Act which deals with the requirements of a valid will.)

In Alberta, the Wills and Succession Act consolidates not only the requirements of a valid will, but also provides for the distribution in the event of intestacy.

In Ontario, the relevant statute is known as the Succession Law Reform Act.

Each jurisdiction is different in points of detail but the general scheme seems to be the first take care of the spouse. She or he normally inherit a first guaranteed share, in some cases the entirety of the estate if there are no children or other lineal descendants.

If there is a spouse and lineal descendants, the spouse would typically take a specified portion of the estate (eg. a third), and the residue would be split between the children then living or their next of kin in equal shares per stirpes.

If neither spouse nor issue survived the intestate, the estate would then normally go to the parents of the deceased.

At the bottom of the pecking order would be brothers and sisters of the deceased-intestate who would then inherit the entirety of the estate. This, of course, assuming that there is no surviving spouse, children or lineal descendants, or parents that survive the intestate.

Further down the food chain are nephews and nieces.

Still further, and again assuming that there are no survivors from amongst the above groups, a formula is provided to distribute the estate equally amongst blood relatives of the same degree of consanguinity.

Intestacy emerging issues

Some of the emerging issues in this field of estate law include the definition of the spouse which no longer requires a marriage but would include a marriage like relationship with the intestate for at least two years. Same-sex relationships also present novel issues in this area of law.

Some jurisdictions such as British Columbia not only give a spouse a priority share of the intestate's estate, but also give her a life estate in the matrimonial home, and she/he gets all "household furnishings" (§96(2), Estate Administration Act).

Dying without a will leaves distribution to the strict formula set by the government.