PastPaperHero | Titles - Transfer by operation of law and by will

Learning Outcomes

This article explains how legal title to real property passes at and around death for MBE purposes, including:

Distinguishing transfers by operation of law (intestacy, survivorship, elective share, escheat, foreclosure, condemnation, and other court-ordered or statutory shifts) from transfers by will (devise) and inter vivos conveyances.
Identifying precisely when title vests automatically in heirs, devisees, surviving joint tenants, or the state, and when probate proceedings merely confirm an already-effective transfer.
Applying the formal requirements for devises of real property, spotting when a devise is specific versus general or residuary, and recognizing when that devise fails because of ademption, lapse, or invalid will formalities.
Analyzing how anti-lapse statutes, disclaimers, spousal elective shares, homestead and family protections, and survivorship features of joint tenancies and tenancies by the entirety reallocate ownership.
Recognizing common exam traps where a will purports to devise property that actually passes outside the will (joint tenancy, POD/TOD accounts, transfer-on-death deeds), and correctly determining who owns the property the moment after the decedent’s death.

MBE Syllabus

For the MBE, you are required to understand how title to real property moves at death and through other non-voluntary mechanisms, with a focus on the following syllabus points:

The distinction between intestate succession and testamentary devise.
The effect of intestacy statutes on who takes real property, and the concept that title often vests in heirs at death subject to administration.
The requirements for a valid will and valid devise of real property.
Lapse, anti-lapse statutes, and ademption (by extinction and by satisfaction).
The effect of escheat, foreclosure, condemnation, and other statutory or court-ordered transfers on title.
The impact of survivorship estates, spousal elective shares, and disclaimers as transfers by operation of law.

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.

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.
A valid devise of real property by will generally 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.
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.
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, the MBE wants you to know who owns the land the instant after death and why. Sometimes title shifts automatically under statutes or pre-existing property arrangements; other times it shifts because a valid will directs a devise.

Real property can therefore move in three broad ways in this context:

By operation of law (e.g., intestacy, survivorship, escheat, spousal elective share, foreclosure, condemnation).
By will (a devise to a named or described devisee).
By inter vivos transfer (e.g., deed during life), which removes the property from the decedent’s estate entirely.

The core MBE issues are:

Separating probate property (governed by will or intestacy) from nonprobate property (passing outside the will).
Knowing when a testamentary gift fails (ademption or lapse) and who then takes.
Recognizing when a statute or court order shifts title even without any deed from the owner.

Key Term: Operation of Law
A change in property rights that occurs automatically because a statute, property rule, or court order applies, without the need for a deed, contract, or voluntary act by the current owner.

Key Term: Probate
The court-supervised process of proving a will, paying creditors and expenses, and distributing the decedent’s probate estate in accordance with the will or intestacy laws.

Transfers by Operation of Law

Title to real property can transfer automatically by operation of law in several situations. Some are triggered by death (intestacy, survivorship, elective share, escheat); others occur during life (foreclosure, condemnation, certain divorce orders).

On the MBE, when you see “O dies” or “Owner defaults on a mortgage,” ask first: Is there a statute or property rule that automatically reallocates title?

Intestate Succession

If a property owner dies without a valid will, or as to any property not effectively disposed of by will, state intestacy statutes determine who receives the property. In many states, legal title to real property:

Vests at the instant of death in the decedent’s heirs as defined by statute,
But is subject to administration: the personal representative may sell or encumber the land to pay debts, taxes, and expenses.

Key Term: Intestate Succession
The statutory scheme that determines who takes a decedent’s property when there is no valid will (or no effective disposition of particular property by will).

Key Term: Heirs
The persons designated by intestacy statutes to take a decedent’s property when the decedent dies intestate as to that property. No one is an “heir” of a living person.

Key points for the MBE:

Who are the heirs? Typically, surviving spouse and descendants first; if none, then parents, siblings, more remote relatives. Exact fractions vary by state and are rarely tested.
If a will disposes of some but not all property, un-devised property still passes by intestacy.
If an heir disclaims (renounces) an intestate share, most statutes treat the heir as having predeceased the decedent and redistribute the share accordingly.

Key Term: Disclaimer
A valid refusal to accept a testamentary or intestate gift, usually made in a signed writing and within a statutory time; the property is then distributed as if the disclaimant predeceased the decedent.

Even when a decedent leaves a will, most states protect the surviving spouse (and sometimes minor children) with statutory shares that arise by operation of law.

Key Term: Elective Share
A statutory right of a surviving spouse to take a fixed percentage of the decedent’s estate (often 1/3 or 1/2), even if the will leaves the spouse less or nothing.

For MBE purposes:

A surviving spouse can usually elect against the will to take the elective share instead of what the will provides.
The elective share is a transfer by operation of law: the spouse’s title to part of the estate arises from the statute, not from the will.
Wills attempting to completely disinherit a spouse are typically ineffective as to the elective share portion.

Many jurisdictions also provide a homestead right or small allowances for the family. These are again statutory property interests arising by operation of law, not by devise.

Statutory Vesting and Escheat

If no eligible heirs exist, title may vest in the state by escheat.

Key Term: Escheat
The process by which a decedent’s property reverts to the state when the decedent dies intestate and no heirs can be found under the applicable intestacy statute.

Escheat mechanics:

Property does not escheat merely because no will exists; it escheats only when no statutory takers exist.
Even after escheat, some states allow very remote relatives to reopen the matter within a limited time, but the MBE usually presumes escheat is final once properly established.

“Statutory vesting” during life also moves title by operation of law. Examples likely to appear as background in MBE questions include:

Mortgage foreclosure: title passes from the mortgagor to the foreclosure sale purchaser under statute and court order.
Tax sale: delinquent tax statutes authorize a sale that cuts off the owner’s title and vests new title in the purchaser.
Condemnation (eminent domain): the government’s taking—once properly carried out—transfers title from the owner to the condemning authority.

Survivorship Property and Other Nonprobate Transfers

Some valuable MBE traps involve property that passes outside the will altogether because of built-in survivorship mechanisms.

Key Term: Right of Survivorship
The feature of a joint tenancy or tenancy by the entirety under which, upon one cotenant’s death, the surviving cotenant(s) automatically own the decedent’s share.

Key rules:

Joint tenancy and tenancy by the entirety: when one cotenant dies, the survivor(s) become sole owner(s) of the decedent’s share by operation of law. The decedent’s will cannot redirect that share.
A will purporting to devise “my interest in Blackacre” does nothing if the decedent held Blackacre solely in joint tenancy and the survivorship event has already occurred.
Similar principles apply to POD/TOD accounts (payable-on-death bank accounts, transfer-on-death securities) and modern transfer-on-death deeds where authorized by statute.

On the MBE, always ask:

Was the property held with a right of survivorship? If so, the survivorship rule beats the will, and the survivor takes automatically.

Court-Ordered Transfers

Courts may transfer title by order, such as in:

Partition actions among cotenants.
Foreclosure and tax sale proceedings.
Quiet title actions resolving adverse claims.
Eminent domain proceedings.

These are also transfers by operation of law. The deed from a sheriff or commissioner implements, but does not create, the judicial reallocation of title.

Transfer by Will (Devise)

A property owner may transfer title at death by leaving a valid will. The will takes effect only at death and only as to property the testator owns at that moment.

Key Term: Devise
A gift of real property under a will. The recipient is a devisee.

Key Term: Residuary Devise
A testamentary gift of “the rest, residue, and remainder” of the estate after specific and general gifts and expenses have been paid.

Requirements for a Valid Devise

On the MBE, assume the governing law roughly follows modern majority / UPC-style formalities unless otherwise stated. A valid devise usually requires:

A valid will, which typically must:
- Be in writing.
- Be signed by the testator (or by someone at the testator’s direction and in the testator’s presence).
- Be attested by at least two competent witnesses who witness either the signing or the testator’s acknowledgment of the signature or will.
Testamentary capacity and lack of undue influence (these invalidate the will as a whole, but are more frequently tested in Wills than in Property).
A devise that sufficiently describes the property and the devisee.
The devisee must survive the testator, unless:
- The will provides an alternative taker or survivorship language, or
- A statute (e.g., anti-lapse) substitutes a descendant of the devisee.

Key Term: Lapse
The failure of a testamentary gift because the intended beneficiary predeceased the testator and no statute or substitute taker saves the gift.

A critical MBE point: A will only operates on property the testator owns at death. If Blackacre has been sold, mortgaged, or given away during life, the devise is at risk of failure.

Ademption and Lapse

Two common ways devises fail are ademption and lapse.

Key Term: Ademption
The failure of a specific testamentary gift because the property is not part of the testator’s estate at death, usually because the testator disposed of it during life.

Classic ademption by extinction:

The will leaves “my farm in Green County to A.”
Before death, the testator sells the farm to a third party and uses the proceeds for other purposes.
At death, the farm is no longer in the estate. The gift is adeemed; A takes nothing unless a statute or will provision says otherwise.
The sale proceeds or substitute property, under the traditional rule, do not pass to A.

Modern reforms in some states trace certain replacements, but the MBE usually follows the traditional strict ademption rule unless told otherwise.

Lapse and anti-lapse:

If a devisee predeceases the testator, the gift lapses and usually falls into the residue (or, if the gift is residuary and there is no saving statute, passes by intestacy).
Many states have anti-lapse statutes that save gifts to certain close relatives.

Key Term: Anti-Lapse Statute
A statute providing that when a gift is made to a predeceased beneficiary within a protected class (usually a descendant of the testator or of the testator’s parents) who leaves surviving issue, the issue take the gift by substitution, unless the will clearly indicates a contrary intent.

Anti-lapse statutes typically:

Apply only if the predeceasing devisee is within the statute’s defined family class.
Substitute the devisee’s issue for the devisee.
Yield to clear contrary language, such as “if he survives me.”

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 surviving spouse and descendants share the estate pursuant to statutory fractions (e.g., spouse plus children). Exact percentages vary by state and are not usually tested. The key MBE point is that title vests automatically in the heirs by operation of law at the moment of death, subject to the personal representative’s power to sell the land to pay debts and expenses.

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:
Without an anti-lapse statute, Sara’s gift would lapse because she predeceased Testator, and the farm would usually fall into the residue or pass by intestacy. Because Sara is within the protected class (e.g., a descendant of the testator’s parents) and left surviving issue, the anti-lapse statute substitutes Sara’s children, who take the farm in Sara’s place, assuming the will does not clearly require survival.

Worked Example 1.3

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

Answer:
With no heirs under the intestacy statute, the property escheats to the state by operation of law. No devise is involved; the state’s title derives from the escheat statute.

Worked Example 1.4

T’s will states: “I devise my lake cabin to my nephew Ned, and the rest of my estate to my niece Nina.” Years later, T sells the cabin and uses the money to buy a condominium, which T owns at death. Who takes the condominium?

Answer:
The gift to Ned was a specific devise (“my lake cabin”). Because the cabin was sold and is not in T’s estate at death, the gift is adeemed. Under the traditional rule, neither the sale proceeds nor the replacement condominium go to Ned. The condominium is instead part of the residuary estate, so Nina takes it under the residuary devise.

Worked Example 1.5

O and A own Blackacre as joint tenants with right of survivorship. O’s later will purports to “devise my interest in Blackacre to B.” O dies, leaving A and B surviving. Who owns Blackacre?

Answer:
Joint tenants hold with a right of survivorship, so when O dies, A automatically becomes sole owner of O’s share by operation of law. The will cannot devise what O no longer owns at death. The attempted devise to B is ineffective as to Blackacre; A owns the property outright, and B takes nothing in Blackacre under the will.

Worked Example 1.6

D dies intestate, leaving a son S as her only heir. S timely files a valid disclaimer of his intestate share. Who takes D’s real property?

Answer:
A valid disclaimer causes S to be treated as if he predeceased D. The intestacy statute is then applied without S. If, for example, D’s parents are alive, they now become the heirs. Title to the real property thus vests by operation of law in whoever the statute designates after treating S as predeceased—often D’s parents or S’s own issue, depending on the statute.

Exam Warning

Many candidates confuse:

Intestate succession (operation of law) with devise by will. Always ask whether the decedent left a valid will that effectively disposes of the property in question.

Survivorship property with probate property. A will cannot redirect joint tenancy or tenancy by the entirety interests upon death; the survivor takes automatically.

Anti-lapse as a universal cure. Anti-lapse usually applies only to gifts to specified relatives who leave issue. If the beneficiary is outside the protected class, the gift simply lapses.

Revision Tip

A will only transfers property the testator owns at death. If the property was sold, lost in foreclosure, or otherwise disposed of before death, a specific devise is typically adeemed and fails. Do not assume the beneficiary gets substitute property or sale proceeds unless a statute or the will clearly says so.

Key Point Checklist

This article has covered the following key knowledge points:

Transfers by operation of law include intestate succession, survivorship in joint tenancies and tenancies by the entirety, spousal elective shares and family protections, escheat, and court-ordered transfers such as foreclosure and condemnation.
Under intestate succession, title to real property usually vests in the decedent’s heirs at death, subject to administration for debts and expenses.
If there are no heirs, the property escheats to the state by statute; escheat is a transfer by operation of law, not by will.
A surviving spouse may have an elective share that arises by operation of law and can override the terms of the will as to a portion of the estate.
Property held with a right of survivorship passes automatically to the survivor outside the will; a will cannot redirect that interest.
A valid devise requires a valid will (typically a signed writing with two witnesses), adequate description of the property and devisee, and survival of the devisee unless a statute or will provision provides otherwise.
Ademption occurs when a specific item devised by will is not in the estate at death; the beneficiary usually receives nothing in its place, and the property (or replacement) falls into the residue.
Lapse occurs when the devisee predeceases the testator; anti-lapse statutes may substitute the devisee’s issue if the devisee is within a protected class.
A disclaimer allows a beneficiary or heir to refuse a gift, causing the property to pass as if the disclaimant predeceased, which is another form of transfer by operation of law.
Court orders (partition, foreclosure, condemnation) and statutory procedures (tax sales, escheat) transfer title without any voluntary deed from the prior owner.

Key Terms and Concepts

Operation of Law
Probate
Intestate Succession
Heirs
Escheat
Devise
Residuary Devise
Ademption
Lapse
Anti-Lapse Statute
Elective Share
Right of Survivorship
Disclaimer

Titles - Transfer by operation of law and by will