by Dr Mary Rose Micallef – Junior Associate
The following is the first article in a series of articles delving into the rules that regulate succession. To start with the fist article shall discuss the fundamental points that regulate the institute of intestate succession.
Intestate Succession
Generally speaking, intestate succession is the legal institute that kicks in as a regulator of an hereditary estate of a person who has died without leaving a will.
To this effect, article 788 of the Civil Code provides the instances where intestate succession takes place:
– where there is no valid will;
– or where the testator has not disposed of the whole of his estate;
– or where the heirs-instituted are unwilling or unable to accept the inheritance;
– or where the right of accretion among the co-heirs does not arise.
The opposite of intestate succession is testate succession – the latter entails that the estate that is left by the deceased is regulated by the deceased’s last wishes; namely his will.
Intestate essentially means that transfer of the hereditary property in terms of the rules that regulate intestate succession – in other words no person would have a say as to what he inherits.
In essence, intestate rules fluctuate according to the “type(s)” of survivors that survive the deceased person. The law in fact speaks of “the proximity (‘closeness’) of the relationship” with the person who has passed on.
For instance, the law (now) favours the children and the widow/widower of the deceased over the deceased living parents. For the purposes of this discussion, intestate rules can be splint unto two:
1. the rules that regulate the inheritance when the deceased is survived by a spouse or children or descendants (children of his children, and so on and so forth).
2. the rules that regulated the inheritance of a deceased who is not survived by either a spouse or children or their descendants.
Let’s take a general example: suppose that Jacob has died leaving his mother Rebecca and/or a brother Bernard, his widow Graziella and his child Rene – who shall inherit Jacob?
– Half of Jacob’s estate would be inherited by Graziella; the other half shall devolve unto his child Renee. In case Renee predeceased his father, then the children of Renee would inherit their father’s share from their grandfather (one half of the estate equally amongst them).
In a nutshell the inheritance of a person who is survived by his widow and his children would be split in half – one half shall devolve on the widow and the other half shall devolve on the children, equally amongst them.
What if Jacob (the person who has rested in peace) is only survived by his mother Rebecca and his widow Graziella i.e. he has left no children – his wife takes it all.
The law affords special protection to the widow/widower. In fact, the law reserves to the surviving spouse the right of habitation of the matrimonial home (which right would cease if the widor/widower opts to engage in a second marriage) and the right of use of the matrimonial home’s furniture.
Moreover, if Jacob is only survived by a child or a child of his child (descendant) and his mother Rebecca, his child or his child’s child (the nephew) would inherit all his estate to the exclusion of Jacob’s mother.
How does Jacob’s estate devolve if he has left no wife and children? Let’s assume that Jacob is only survived by his siblings and parents. The estate is split into two halves – one half shall devolve on his parents, equally between them, and the other shall devolve on Jacob’s siblings, which is then split equally amongst them.
In the absence of spouses or children the law provides intestate rules that would regulate the inheritance amongst the deceased closest relatives. The law treats surviving ascendants (such as parents, grand-parents) and collaterals (siblings, aunts/uncles, cousins) equally. Yet, the
What if Jacob is survived by a grandparent, parent and siblings? The law favours the closest and excludes the remotest relative. Hence the grandparent is excluded and the estate is split in the same manner as explained in the latter example.
Furthermore, what if Jacob is only survived by his siblings and a grandparent? Likewise, the estate would be split into half – one-half devolves unto the grandparent and the other half would devolve unto the siblings.
Taking the same example, but assuming that Jacob is only survived by his grandparent and his nephew (his brother’s child) – the estate would be split into half – one part would be inherited by the grand parent, whilst the other by his nephew.
Let’s assume that Jacob is not survived by any close relatives such as his parents, siblings or grandparents, but is survived by a ten second cousins – Jacob’s estate would devolve unto such second cousins, amongst them.
At the end the law stipulates that, if the deceased is not survived by any of the persons, (mentioned above, such as his siblings, parents, grandparents, nephews, nieces, first/second/third cousins, etc…), the inheritance would devolve in favour of the Government of Malta.
As seen intestate rules are there to make up for any void that is left by the deceased after his demise – when it comes to his hereditary inheritance. Simply put, intestate law is there to make sure that no estate is left in limbo, if any of the circumstances foreseen by article 788 (cited above) of the Civil Law occurs.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Mary Rose Micallef on maryrose@abalegal.eu.