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How Does Real Estate Pass Through Intestacy?

by Jayne Thompson, studioD

A state of intestacy arises when someone dies without leaving a will. Partial intestacy arises when the deceased person does leave a will, but fails to make provision for some part of his property. When real estate is affected by intestacy, a combination of general real estate laws and specific state intestacy laws determines what happens to it. Different rules apply, according to how the deceased person owned the property during his lifetime.

Joint Tenancy Property

If the person who died owned the real estate as a joint tenant with a right of survivorship, that property passes immediately to his co-owner or owners at the point of death. Property co-owned as a joint tenancy interest automatically by-passes the probate process, and never forms part of the deceased person's estate. Intestacy is not an issue.

Husband and Wife

Many states have special forms of joint tenancy based around the concept of a husband and wife co-owning property. These forms of co-ownership are known as community property, or tenancies by the entirety. In some states, whenever a husband and wife own property together, this form of ownership is implied. The effect of holding property under a husband and wife interest is the same as holding it under a joint tenancy with survivorship, in that the survivor becomes entitled to the whole property upon the death of his spouse, without the property passing through probate.

Other Property

Real estate owned by the deceased person individually, or co-owned by him as a tenant in common, will form part of his "estate" at death. His estate is the total value of all real and personal property which the dead person owned at the time of his death. It is an unusual concept, in that title to all of the deceased person's property vests in the "estate" until a decision is made as to how that property should be distributed. That decision rests with the court, which applies state intestacy laws. Until the court reaches a decision, the estate is managed by a court appointed executor. This individual settles the financial obligations of the estate during the probate period and ultimately transfers the property according to the stipulation of the court.


Intestate property is distributed to the heirs of the deceased. These are his spouse, children, parents, siblings and so on, down to distant blood relatives, who are ranked according to entitlement. While state laws vary, the ranking of heirs typically follows the bloodline, so that children have priority. Some states place the surviving spouse first. Where more than one equivalent heir exists, state law determines the share that each of them is to receive. The real estate is then sold, so that each heir can receive money to the value of his allocated share.

About the Author

Jayne Thompson qualified as a solicitor in 1996. She holds a first degree in law and business from the University of Birmingham and a Master of laws from the University of East London.Thompson shamefully admits to using her family as fodder for the lifestyle and parenting articles she also writes, which have appeared most recently in "The Green Parent" magazine.

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