Law of Succession: Testamentary and Intestate Successions

Law of Succession

The law of succession refers to the legal framework governing the transmission of rights and obligations from a deceased person to their heirs. It encompasses both testate and intestate successions, and the rules vary depending on whether the deceased had a valid will or not.

Testamentary Succession

In a testamentary succession, the deceased has left a valid will specifying the distribution of their property. The personal representative or executor named in the will must obtain a grant of probate to prove the will's authenticity. With the grant of probate, the executor can distribute the estate according to the instructions in the will.

Intestate Succession

If the deceased did not leave a valid will, their estate is subject to intestate succession. In this case, the personal representative must apply for letters of administration to manage the estate. The distribution of property in intestate succession follows a predetermined order of priority, which includes paying off debts, distributing the dwelling house, furniture, and cash, and then dividing the remaining assets among the heirs.

Order of Heirs

In the absence of a valid will, the law determines the order of heirs based on the deceased's blood relations. The order is as follows:

1. Descendants (children, grandchildren, etc.)
2. Ascendants (parents, grandparents, etc.)
3. Collaterals (siblings, aunts, uncles, etc.)

Each heir's share in the estate is determined based on the law of the jurisdiction where the deceased resided at the time of their death.

Scope of the Law of Succession

The law of succession generally covers the distribution of the deceased's property, including both assets and debts. It may also include the appointment of personal representatives and the duties they must perform.

Legal Considerations

The drafting of a will or the preparation for intestate succession should be done carefully to ensure that the deceased's wishes are carried out. Legal professionals, such as solicitors, have a duty to ensure that wills are accurately prepared and that the testator is legally capable of making the will. Failure to adhere to these legal requirements can result in disputes over the validity of the will and may affect the rights of the beneficiaries.

Preserving the Deceased's Wishes

In both testate and intestate successions, it is essential to respect the deceased's wishes regarding the distribution of their property. In many cases, the deceased will want their estate to be distributed to specific individuals or charities. By following the legal process and ensuring that the deceased's wishes are carried out, the law of succession helps maintain individual rights of property and bequest, as observed by Lecky.