Module 1
The map of succession: the estate, the personal representative, will, intestacy and forced shares, and the property that never enters the estate
When a person dies, their property does not vanish and it does not pass to whoever happens to be nearby. A set of rules decides who takes it, who has authority to deal with it in the meantime, and who pays what the person owed. Those rules are the law of succession, and they are some of the first rules that most families meet, usually at a painful time. This module draws the map. It shows what the estate is, who runs it, the three routes by which property can pass, and the large amount of property that never goes through the will at all. Later modules take each part of the map in detail.
By the end of this module you can
- Say what the estate is and what the personal representative does.
- Name the three routes by which property passes at death.
- Separate property that passes under the will from property that passes outside the estate.
- Explain probate in outline and why it is needed.
- Contrast the common-law freedom to choose with forced heirship and family provision.
Part 1. The lecture
What happens when someone dies
A person who dies leaves behind property, debts and people. The law of succession answers three questions about them. What property is there? Who takes it? Who is in charge until it is handed over? Almost every problem in this course is a version of one of those three questions, and a lawyer who starts by asking them in order avoids most of the mistakes that trainees make.
The property that the law treats as passing through the hands of an administrator is called the estate. In the common-law world, the estate is, broadly, what the person owned at death and could deal with, less the property that passes by some other route (see below). The person who takes charge of it is the personal representative. Their job is to collect the assets, pay the debts and taxes, and hand what remains to the people entitled to it. They do not own the estate for themselves. They hold it for others, which is why the law treats them as a kind of trustee and holds them to a high standard (Module 7).
| Question | What it asks | Example (invented) |
|---|---|---|
| What property? | What did the person own, and what passes outside the estate? | Edith Marlowe owned a flat, a savings account and shares, and she held a life policy that named her niece. |
| Who takes? | Does a will say, or do the default rules apply? | Edith’s will leaves the flat to her nephew and the rest to a charity. |
| Who is in charge? | Who has the authority to collect, pay and distribute? | Her will names her solicitor as the executor, and a court confirms the appointment. |
A word on words
Succession law has a great deal of old vocabulary, and it differs from place to place. The person who makes a will is the testator (the old feminine form, testatrix, is rarely used now). A gift of land by will used to be a devise and a gift of other property a legacy or bequest, though many places now say simply gift. The person who receives is a beneficiary. The people who inherit when there is no will are called heirs in some systems and next of kin in others. Do not worry about the labels in one place; learn what each does.
Three routes: will, intestacy and forced shares
There are three routes by which property in the estate passes to people at death, and a single estate can use more than one of them.
| Route | How it works | Who decides | Example (invented) |
|---|---|---|---|
| Will (testacy) | A valid will says who takes what | The person who made it, within the limits of the law | Edith’s will leaves her flat to her nephew. |
| Intestacy | The law’s own scheme applies to property the will does not cover, or where there is no will | The legislature, by a fixed order of relatives | Edith made no will for her shares, so they go to her relatives in the order the statute sets. |
| Forced shares and family claims | The law reserves a part for close family, or lets them ask a court for a share | The legislature and the court, overriding the will | Edith’s husband, left nothing, claims the share that the law guarantees to a spouse. |
- A will is the main route in the common-law world. The tradition gives the owner of property wide freedom to say who takes it, with the limits described in Module 6. A will must be valid, which depends on capacity, intention and formalities (Modules 2 to 4).
- Intestacy is the safety net. Where there is no will, or the will fails, or it does not cover everything, the law’s scheme applies. It is a default and not a judgment of what the person would have wanted, and it often produces results that surprise families (Module 6).
- Forced shares and family claims are the limit on freedom. Some systems reserve a fixed portion of the estate for close family whatever the will says. Others let a court adjust the result if the will makes no reasonable provision. Either way the will is not the last word.
- The routes can combine. Edith’s flat passes under her will, her shares by intestacy because the will forgot them, and her husband may claim against both. A good succession lawyer asks about all three for each item.
Property that never enters the estate
A surprising amount of what people own at death does not pass through their will, or through intestacy, at all. It passes to someone automatically, by the way it was held or by a contract. A will that gives this property to someone else is simply ignored for that property, which is a common source of disputes and of regret. The lawyer’s first task is to separate what is in the estate from what is not.
| Property | Why it passes outside the estate | Example (invented) |
|---|---|---|
| Jointly owned property with survivorship | On death the survivor takes the whole by the terms of the joint ownership | Edith and her sister owned a holiday cottage as joint tenants, so the cottage goes to the sister. |
| Life insurance and pensions with a named beneficiary | The contract or scheme pays the person named | Edith’s life policy names her niece, so the niece receives it, whatever the will says. |
| Accounts payable on death | The bank pays the named person on production of the death certificate | A savings account marked payable on death to a friend. |
| Property held in a living trust | The trustee already holds it, so the trust deed, not the will, governs | Edith put her art collection in a trust during her life, naming her godson. |
| Property in other people’s estates | Rights under another person’s will or trust that have not yet been received | Edith was due a legacy from her aunt, not yet paid. |
The most common mistake
A client says, ‘My will leaves everything equally to my three children.’ Their house is held jointly with a partner who has the right of survivorship, their pension names one child, and the savings account is payable on death to another. In truth, the will may cover very little of what the client owns. Ask what the will covers before you advise on what it says. Ask also how each asset is held, who is named on each form, and whether any asset is in a trust.
None of this means the property is outside the law. A creditor may still reach some of it, a court may still treat some of it as part of what a spouse is entitled to share in, and a tax authority may count it. And the rules differ widely between places: survivorship may be automatic in one country and unknown in another, and beneficiary designations are far more common in some systems than in others. The point of this module is to make the question habitual.
Probate in outline
A personal representative needs proof of authority. A bank will not release the account of a dead person on the word of a relative, and a land registry will not transfer a house on the strength of a letter. The proof is a document from the court or an official, which in many places is called a grant of probate where there is a will and an executor, or a grant of administration (or letters of administration) where there is no will or no executor able to act. The process of obtaining it, and the wider process of administering the estate under the court’s eye, is called probate.
| Step | What happens | Why it matters |
|---|---|---|
| Find the will and the facts | Locate the will, a death certificate, a list of assets and debts | You cannot act without knowing what is there |
| Identify who should act | The will names an executor, or, if none, the law says who may apply to administer | Only the right person can apply |
| Apply for the grant | A court or probate office checks the will is valid and the applicant has the right | Gives the legal authority that others will accept |
| Collect, pay and distribute | The personal representative gets in assets, pays debts and taxes and distributes | The core of the work (Module 7) |
| Close the estate | Accounts are approved by those entitled, and the representative is released | Ends the representative’s liability, once everyone has signed off |
- Executor and administrator. An executor is named in the will and gets authority from it, which the grant confirms. An administrator is appointed by the court where there is no will, or no executor who can or will act. The duties are alike.
- Small estates. Many places let small or simple estates be dealt with by a short procedure, or without a grant at all. The limit differs from place to place.
- Contested cases. If someone challenges the will, the court may need to decide its validity before a grant is made, or may revoke a grant already made (Module 3).
- Property abroad. A grant in one country is not always recognised in another, and an estate with property in several places may need several grants or a recognition procedure (Module 7).
Freedom to choose, and its limits
How far may a person decide who gets their property? Legal systems answer in different ways, and the answer shapes every other part of succession law.
| Approach | Idea | Where it is found | Effect on a will |
|---|---|---|---|
| Wide testamentary freedom | The owner may leave property to anyone, with few limits | Many common-law systems, such as most US states | The will is close to the last word, subject to a spouse’s share |
| Freedom with family provision | The owner is free, but a court may adjust a will that fails to provide reasonably for close family | England and Wales, Australia, New Zealand, Canadian provinces and others | A will can be varied by court order |
| Forced heirship | The law reserves a fixed portion of the estate for close family, usually children and a spouse | Many civil-law systems, and others influenced by them | Only the free portion is left to the owner’s choice |
Where civil-law systems differ
In many civil-law countries the starting point is reversed. The family has rights in the estate, in fixed shares, and the owner’s will governs the rest. A notary often has a larger role in preparing and keeping wills. And the heirs may acquire the estate directly at death, with the administrator’s role being lighter than in the common-law world. These differences matter for anyone with family or property in two countries (Module 7). The site’s Inheritance tool compares the main rules for 82 countries and is a good place to see the contrast at a glance.
This course concentrates on the common-law approach, because that is where the will plays the largest part and where most of the doctrinal puzzles arise. It notes the civil-law contrast where it helps, and it uses invented people and estates throughout.
The order of thought for the rest of the course
1. Who died, where were they living, and where is the property? 2. Is there a valid will? 3. What passes outside the estate? 4. Who takes what, under the will or by intestacy? 5. Can anyone claim more than they were given? 6. Who administers the estate, and what are the debts? Keep these six questions beside you in every module and the capstone.
Part 2. Lab: Inside or Outside the Estate?
Sort each item by whether it passes under the will (or intestacy) or outside the estate.
Situation 1 of 8
A flat held in the deceased’s sole name.
Where does this belong?
Part 3. Lab: First Step
Choose the best first step in each situation.
Situation 1 of 3
A client says, ‘My father died last month. He left a will giving everything to my brother, but I think he put me down on his life policy.’
What is the best first step?
Part 4. Lab: Spot the Succession Mistake
Click the statements that confuse the map of succession.
A trainee’s notes
Click every sentence that causes a problem, then press Check. There may be 3 problems, and some sentences are fine.
Part 5. Check your understanding
Ten questions drawn from a larger pool. Sign in to have your score saved towards your certificate.
You have finished the free module
Here is what you can do now, and where the course goes next
Module 1 gave you
- Say what the estate is and what the personal representative does.
- Name the three routes by which property passes at death.
- Separate property that passes under the will from property that passes outside the estate.
- Explain probate in outline and why it is needed.
- Contrast the common-law freedom to choose with forced heirship and family provision.
Next, 6 more modules and a capstone
- Module 2: Capacity, intention and formalities: who may make a will, what they must understand, how a will is signed and witnessed, and what happens when the formalities failYou will learn to state the test of testamentary capacity and when it is judged.
- Module 3: Defects and challenges: undue influence, fraud, forgery and mistake, the burden of proof, how a will is contested and no-contest clausesYou will learn to say who can challenge a will and on what grounds.
- Module 4: Revocation, alteration and revival: changing a will, codicils, dependent relative revocation, lost wills, mutual wills and contracts to make a willYou will learn to list the ways a will is revoked: by a later will, by act and by law.
- Module 5: Gifts and interpretation: specific, general, demonstrative and residuary gifts, ademption, lapse and abatement, class gifts, reading a will and rectificationYou will learn to name the four kinds of gift and the order in which they abate.
- Module 6: Intestacy and the limits of freedom: the order of relatives, representation by branch or by head, simultaneous deaths, family provision, elective shares and forced heirship
- Module 7: Administering the estate: the personal representative’s duties and liability, debts and their order, tax in outline, distribution and accounts, disputes and estates across borders
- Capstone: Capstone: the estate of Margit Hale
Each module has its own practice labs and a graded quiz, and a Certificate of Completion follows when you pass them all. The whole course is $15 once, or included in an All-Access Membership.
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General education on the law of wills and succession, using invented people and estates. It states common principles in simplified form and does not describe any one country’s law, which differs and changes; rules on wills, intestacy, family claims and probate are strict and local. It is not legal advice. Consult a qualified lawyer in the place that matters.
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