Titles - Transfer by operation of law and by will

Learning Outcomes

After reading this article, you will be able to explain how legal title to real property passes by operation of law (such as intestacy or statutory vesting) and by will (devise), recognize the requirements for valid transfers, and apply these principles to MBE-style questions. You will also be able to distinguish between intestate succession, devise, and other involuntary transfers, and identify key exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the rules governing how title to real property passes when the owner dies or by operation of law. This includes the effect of intestacy statutes, the requirements for a valid devise by will, and the consequences of statutory vesting or court orders. For revision, focus on:

  • The difference between transfer by will (devise) and intestate succession.
  • The effect of intestacy statutes and statutory vesting.
  • The requirements for a valid devise of real property.
  • The operation of anti-lapse statutes and ademption.
  • The effect of court orders, statutory vesting, or escheat on title.
  • The consequences of title passing by operation of law (e.g., divorce, forfeiture, condemnation).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. If a property owner dies intestate, title to the property:
    1. Passes to the state immediately.
    2. Passes to the decedent’s heirs by operation of law.
    3. Remains in the decedent’s estate until a will is probated.
    4. Must be transferred by court order only.
  2. A valid devise of real property by will requires:
    1. A signed writing by the testator and at least two witnesses.
    2. Oral instructions to the executor.
    3. Delivery of the deed to the devisee before death.
    4. Approval by the decedent’s heirs.
  3. If a will leaves Blackacre to “my nephew Tom,” but Tom dies before the testator, and the state has a typical anti-lapse statute, who takes Blackacre?
    1. The residuary devisee.
    2. Tom’s issue, if any.
    3. The state by escheat.
    4. The executor.
  4. Which of the following is NOT a transfer by operation of law?
    1. Title passing to heirs under intestacy.
    2. Title passing by devise in a will.
    3. Title vesting in the state by escheat.
    4. Title passing to a spouse by statutory survivorship.

Introduction

When a property owner dies or certain statutory events occur, title to real property may transfer automatically, without a deed or voluntary act. These transfers are called transfers by operation of law and include intestate succession, statutory vesting, escheat, and court-ordered transfers. Title may also pass by will, through a devise. Understanding these mechanisms is essential for MBE questions on real property titles.

Transfers by Operation of Law

Title to real property can transfer automatically by operation of law in several situations, most commonly on the death of the owner without a valid will (intestacy), by statutory vesting, or by court order.

Key Term: Operation of Law A legal process by which rights or title pass automatically, without the need for a deed or voluntary transfer, due to a statute or court order.

Intestate Succession

If a property owner dies without a valid will, state intestacy statutes determine who receives the property. Title vests immediately in the decedent’s heirs as defined by statute, subject to administration of the estate.

Key Term: Intestate Succession The statutory process by which property passes to heirs when a person dies without a valid will.

Statutory Vesting and Escheat

If no eligible heirs exist, title may vest in the state by escheat. Statutes may also provide for vesting in other situations, such as divorce, forfeiture, or condemnation.

Key Term: Escheat The process by which property passes to the state when a person dies intestate and without heirs.

Court-Ordered Transfers

Courts may transfer title by order, such as in partition, foreclosure, or eminent domain proceedings. These are also transfers by operation of law.

Transfer by Will (Devise)

A property owner may transfer title at death by leaving a valid will. The will must comply with statutory requirements (usually a signed writing and witnesses). The person receiving real property under a will is called a devisee, and the transfer is a devise.

Key Term: Devise A gift of real property by will.

Requirements for a Valid Devise

  • The will must be in writing, signed by the testator, and witnessed as required by state law.
  • The property must be adequately described.
  • The devisee must survive the testator, unless a statute provides otherwise.

Ademption and Lapse

If the property is no longer owned by the testator at death, the devise fails (ademption). If the devisee predeceases the testator, the gift may lapse unless an anti-lapse statute applies.

Key Term: Ademption The failure of a devise because the property is not in the testator’s estate at death.

Key Term: Anti-Lapse Statute A law that allows certain gifts in a will to pass to the devisee’s descendants if the devisee predeceases the testator.

Worked Example 1.1

Owner dies intestate, survived by a spouse and two children. Who takes title to Owner’s real property?

Answer: Under typical intestacy statutes, the spouse and children share the property as defined by state law. Title vests automatically in the heirs by operation of law, subject to estate administration.

Worked Example 1.2

Testator’s will leaves “my farm to my niece, Sara.” Sara dies before Testator, leaving two children. The state has an anti-lapse statute covering gifts to relatives. Who takes the farm?

Answer: Sara’s children take the farm under the anti-lapse statute, since Sara was a relative of the testator and left surviving issue.

Worked Example 1.3

Owner dies intestate with no surviving relatives. Who receives the property?

Answer: The property escheats to the state by operation of law, since there are no heirs.

Exam Warning

Many students confuse intestate succession (operation of law) with devise by will. On the MBE, always check whether the decedent left a valid will. If not, apply intestacy statutes.

Revision Tip

Remember: A will only transfers property owned by the testator at death. If the property was sold before death, the devise is adeemed and fails.

Key Point Checklist

This article has covered the following key knowledge points:

  • Title can transfer by operation of law (intestacy, statutory vesting, escheat, court order) or by will (devise).
  • Intestate succession vests title in heirs as defined by statute, subject to estate administration.
  • If there are no heirs, property escheats to the state.
  • A valid devise requires a written, signed, and witnessed will describing the property and devisee.
  • Ademption occurs if the property is not in the estate at death; anti-lapse statutes may save gifts to predeceased relatives’ descendants.
  • Court orders, statutory vesting, and escheat are all transfers by operation of law.
  • Transfers by operation of law do not require a deed or voluntary act.

Key Terms and Concepts

  • Operation of Law
  • Intestate Succession
  • Escheat
  • Devise
  • Ademption
  • Anti-Lapse Statute
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