Descent

Definition

Descent is the legal process by which an heir acquires property from a deceased individual who did not leave a will. When a person dies intestate (without a will), state laws, which vary by jurisdiction, determine how the deceased’s property is distributed among the rightful heirs. This process is typically guided through probate court proceedings.

Examples

Example 1: Abel dies without having prepared a will. His wife and son are awarded title to Abel’s estate by the courts. They are said to acquire title by descent.
Example 2: Maria dies intestate, leaving behind a house and a bank account. Her closest living relatives, her two children, inherit the property according to the state’s intestate succession laws, acquiring title by descent.
Example 3: John passes away without a will. His estate, including various real estate properties, is divided among his siblings based on the default rules of intestate succession applicable in his state.

Frequently Asked Questions (FAQs)

What is the difference between descent and devise?

Descent involves inheriting property when there is no will, while devise refers to the distribution of property as specified in a will.

How does probate court handle descent?

Probate court oversees the distribution of the decedent’s estate according to state intestate succession laws and ensures all debts and taxes are paid before the remaining property is passed to rightful heirs.

Does an heir need to take any action to receive property by descent?

Heirs may need to file a petition in probate court to formally claim their inheritance and receive legal title to the property.

Can descent occur if there is a will?

No, descent specifically refers to the acquisition of property without a will. If a valid will exists, the distribution follows the directives within the will.

What are common laws of descent and distribution?

Common laws of descent and distribution often prioritize the spouse, followed by children, parents, siblings, and more distant relatives.

Intestate: Dying without a legally valid will.
Probate Court: A specialized court that deals with matters relating to the probate of wills and the administration of estates.
Heir: A person legally entitled to the property of a deceased person.
Estate: All the money, assets, and property owned by a particular person at the time of death.
Succession: The process of inheriting property.

Online Resources

References

“The American Bar Association Guide to Wills & Estates, Fourth Edition.”
“Intestate Succession” by Ronald Maudsley, Journal of the British Institute of International and Comparative Law
“Planning Can Save Estates From Heirs” by Robert Trust, Trusts & Estates Journal.

Suggested Books for Further Studies

“Estate Planning Basics” by Denis Clifford: An introductory guide covering key concepts in estate planning, including intestate succession.
“The Executor’s Guide: Settling a Loved One’s Estate or Trust” by Mary Randolph J.D.: Practical advice on handling a decedent’s estate through probate.
“Wills, Trusts, and Estates, Ninth Edition” by Robert H. Sitkoff and Jesse Dukeminier: An authoritative textbook on the legal concepts around inheritance and estate planning tools.

Real Estate Basics: Descent Fundamentals Quiz

### What does descent refer to in real estate? - [ ] The decrease in property value over time. - [ ] Acquisition of property through a signed will. - [x] Acquisition of property by an heir when the deceased leaves no will. - [ ] Legal complications in transferring property titles. > **Explanation:** Descent refers to the acquisition of property by an heir when the deceased leaves no will. ### Who determines the distribution of estate when there is no will? - [ ] The closest living relative. - [ ] The deceased's best friend. - [ ] The real estate agent. - [x] State laws and probate court. > **Explanation:** When there is no will, state laws and probate court determine the distribution of the deceased's estate. ### What is the legal term for dying without a will? - [x] Intestate - [ ] Insured - [ ] Devise - [ ] Testate > **Explanation:** The legal term for dying without a will is intestate. ### What other term can be synonymously used with "descent"? - [ ] Residential purchase - [x] Intestate succession - [ ] Property lease - [ ] Land zoning > **Explanation:** Intestate succession refers to the same process as descent, involving the distribution of an estate when there is no will. ### Who typically inherits the property first under intestate succession laws? - [ ] Neighbors - [x] Spouse and children - [ ] Charities - [ ] Business partners > **Explanation:** Intestate succession laws typically prioritize the spouse and children as the primary inheritors of the deceased's property. ### What is the role of probate court in descent? - [ ] To create a will for the deceased. - [ ] To purchase property from heirs. - [x] To oversee the distribution of the estate according to state laws. - [ ] To assess property tax benefits. > **Explanation:** Probate court oversees the distribution of the decedent's estate according to state intestate succession laws. ### What must heirs do to claim property in probate court? - [ ] Visit the deceased's home. - [ ] Become real estate agents. - [x] File a petition in probate court. - [ ] Invest in local businesses. > **Explanation:** Heirs usually need to file a petition in probate court to formally claim their inheritance and receive legal title to the property. ### Can an estate be distributed by descent if there is a valid will? - [ ] Yes, always. - [ ] Sometimes. - [ ] Only for minor properties. - [x] No, it can’t. > **Explanation:** Descent specifically refers to the acquisition of property when there is no valid will. If a valid will exists, the estate is distributed according to its directives. ### What assets are typically considered in an estate? - [ ] Only physical property like houses. - [ ] Only monetary assets like bank accounts. - [x] All money, assets, and property owned by a person at death. - [ ] Only business interests. > **Explanation:** An estate encompasses all money, assets, and property owned by a particular person at the time of their death. ### What happens if no rightful heirs can be found for a property by descent? - [ ] The property is destroyed. - [x] The property escheats to the state. - [ ] The property remains in limbo. - [ ] The local community takes over the property. > **Explanation:** If no rightful heirs can be found, the property typically escheats to the state under state intestate succession laws.

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