Property is transferred upon the death of an owner either by will, or where there is no will, in accordance with the general "laws of descent and distribution" of the particular jurisdiction.
In its technical meaning, the word "descent" must be applied exclusively to real property and the term "distribution" to be utilized only in connection with personal property. However, in many states the word "descent" is used in its popular sense, synonymously with "distribution," and applies to both real and personal property.
In order for property to descend to the heirs, it is necessary for the decedent:
- To have owned the property at the time of death.
- To have not disposed of the property by a will.
Because intestacy may be total or partial, the rules of descent and distribution may apply to only a portion of the estate of a deceased person.
The law of the state in which the property is located will not only designate the persons to inherit the property, but will also provide the respective shares that each one is to receive. Those entitled to inherit are known as the "heirs of law." Rights under the laws of descent vary from state to state.
Generally, the law categorizes the descent as "lineal" or "collateral" and as "per capita" or "per stirpes."
"Lineal" descent is that one which flows through the direct ancestral line of the intestate for example, from father or grandfather to son or grandson, or from son or grandson to father or grandfather.
"Collateral" descent is a line of descent connection persons who are not directly related to each other as ascendants or descendants, but whose relationship consists in common descent from the same ancestor; for example, from brother to brother, or from cousin to cousin.
Descent "per capita" ("by heads") means that person in equal degree to a decedent ancestor who dies intestate share equally in the decedent ancestor's descendible estate. Descent "per stirpes" ("by the roots") or descent by "right of representation" means that the issue of deceased children take whatever shares their deceased parents would have been entitled to receive under the law.