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Partial Intestacy

Also known as: Incomplete Will, Residuary Failure

Definition

Partial intestacy occurs when someone dies with a valid will that doesn't dispose of all their assets, causing the undistributed portion to pass according to intestacy rules rather than their wishes.

This situation creates a split outcome where some assets follow the will's instructions while others are distributed using the government's default rules, potentially leading to unintended beneficiaries and increased estate administration costs.

What Does Partial Intestacy Mean?

Partial intestacy is governed by Section 49 of the Administration of Estates Act 1925 and occurs when someone dies leaving a valid will that disposes of some, but not all, of their property. Unlike total intestacy (dying without any will), the will remains valid for mentioned assets, while undisposed assets pass according to intestacy rules under Part IV of the Administration of Estates Act 1925, as amended in 2014. Two distribution schemes operate simultaneously: the testator's wishes for covered assets and statutory intestacy rules for uncovered assets.

The most common cause is a missing residuary clause—the provision saying "I give all the rest of my estate to..." DIY wills often omit this. For example, James writes a DIY will leaving his car to his son and £10,000 to his daughter but no residuary clause. When James dies with a £300,000 house and £50,000 in savings, only the car and £10,000 are disposed of under his will. The remaining £350,000 falls into partial intestacy, distributed according to intestacy rules rather than James's intentions. Other common scenarios include beneficiaries predeceasing without substitutes, or failed gifts due to lapse or ademption.

Partial intestacy creates significant practical problems. Executors must identify intestacy beneficiaries, often requiring costly genealogical research. This extends probate by months, increases legal costs by thousands, and can result in assets passing to distant relatives or, if none exist, to the Crown. Fortunately, it's preventable through two simple practices: including a comprehensive residuary clause and naming substitute beneficiaries.

Common Questions

"My father's will only mentions his house and car—what happens to his savings?" Without a residuary clause, savings and personal belongings pass under partial intestacy according to intestacy rules rather than the will's instructions.

"The beneficiary in my mum's will died before she did—does the will become invalid?" No, the will remains valid. However, if no substitute beneficiary was named, that gift creates partial intestacy. The failed gift passes according to intestacy rules while the rest follows the will.

"Do I need to update my will every time I acquire new assets?" If your will includes a residuary clause, new assets are automatically covered. Without one, newly acquired assets may fall into partial intestacy.

Common Misconceptions

Myth: If part of a will fails, the whole will becomes invalid.

Reality: The will remains completely valid. Under Section 49 of the Administration of Estates Act 1925, the will continues to govern mentioned assets, and only the undisposed portion passes according to intestacy rules. The two schemes operate simultaneously without invalidating the will.

Myth: Partial intestacy only happens with DIY wills.

Reality: While DIY wills are the most common cause (from missing residuary clauses), professionally drafted wills can still result in partial intestacy if not updated. If all beneficiaries predecease without substitutes named, or if a beneficiary disclaims their gift, partial intestacy can occur even with solicitor-drafted wills.

Understanding Partial Intestacy connects to these concepts:

  • Intestacy: Uses the same statutory distribution rules but applies to only part of an estate.
  • Residuary Clause: The primary prevention mechanism, catching all assets not specifically mentioned.
  • Residuary Estate: What's left after specific gifts—the portion most vulnerable without a residuary clause.
  • Invalid Will: Results in total intestacy for the entire estate, while partial intestacy requires a valid will.
  • Lapse: When a beneficiary dies before the testator, a common cause if no substitute is named.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.