What is a partial intestacy and how does it occur?

What is partial intestacy and who is entitled to the estate when it occurs? Rhiannon Russell of Birketts LLP explains how partial intestacy can arise and what happens when it does.

What is intestacy?

‘Intestacy’ occurs where a person dies without leaving a valid will. Intestacy can arise in several situations. The usual scenario is simply where the deceased does not leave a will at all. However, even where someone has left a will, it is possible for someone to still die intestate. For example:

where the will they had prepared had not been validly executed (for example, not signed or witnessed)
where a validly executed will no longer deals with the ‘estate’ (money, property and possessions) because the sole beneficiary at the date the will was signed was the spouse of the deceased, but they had divorced before their death and no alternative beneficiaries were named
where an individual had made a will, but then married without revisiting their will

In these circumstances, the law of intestacy will then govern the distribution of the individual’s estate. The circumstances above would lead to the whole of the deceased's estate being dealt with under the statutory intestacy rules (see below). However, it is also possible for a 'partial intestacy' to occur.

What is partial intestacy?

A partial intestacy happens where an individual has left a will but, for one reason or another, the will does not fully deal with the whole of their estate.

For example, someone may have left their estate to several people in varying shares. If one of those beneficiaries has died during their lifetime and no alternative provision has been made in the will, the share to them will fail. As no alternative has been made in the will as to who should benefit in this circumstance, this share falls into intestacy.

It should be noted that the remainder of the will is valid, however, and the rest of the estate will be distributed in accordance with the terms of the will.

What happens to an estate on partial intestacy?

If partial intestacy occurs, that part of the estate will pass to the deceased's relatives, in an order known as the law of intestacy. See the full intestacy rules for England and Wales here and for Scotland here.

This means that assets may pass to individuals whom the deceased would not wish to inherit, or to individuals the deceased has never met. If, for example, the deceased had no living immediate family, the assets could end up passing to distant cousins, none of whom were aware of the deceased’s existence.

What issues can arise during partial intestacy?

Not only does a partial intestacy lead to assets passing to beneficiaries the deceased never intended to benefit, it can also be costly and time-consuming. The executors of the estate will need to potentially consult a genealogist to find all possible relatives to determine who would inherit, what may be, a very small share of an estate.

This can take many months, and even once the relatives have been found, making contact can also be very difficult. Sometimes it may not be possible to find the relatives, in which case, the executors will need to incur further costs in taking out insurances, or paying money into court, to comply with their legal and fiduciary duties.

The added complication of a partial intestacy is that the remainder of the will is valid, and therefore there are likely to be beneficiaries inheriting under the will that could lose out on the time and money incurred in tracing relatives and dealing with the issues arising under a partial intestacy.

How can you avoid a partial intestacy?

To avoid a partial intestacy, it is important to ensure that appropriate legal advice is taken when writing a will. Partial intestacies usually arise where the ‘testator’ (the person making the will) has not taken advice from legal professionals on the distribution of their estate.

Where your estate has been divided into shares to be distributed among various beneficiaries, you will also need to consider what you would like to happen to each share if your chosen beneficiary dies before you. It could be as simple as making provision that any such share will be distributed between the other beneficiaries or given to an entirely different beneficiary. However, consideration could also be given to the likes of charities.

More than this, however, it is vitally important individuals keep their wills up to date. Partial intestacies often arise because a beneficiary has died many years previously, but the individual has not taken the time to review and update their will. It would be sensible to review your will every four to five years, although it should also be reviewed whenever that have been significant changes in an individual’s life. For example:

a death of a beneficiary
significant changes in the family relationships
changes in the estate value

Partial intestacies can be extremely stressful and time-consuming for beneficiaries and executors alike. Individuals should therefore take care when preparing their wills to carefully consider how they would like their estates to be distributed, and ensure they review their wills on a regular basis.

Rules of Intestacy England and Wales