When a partial intestacy arises it's usual to expect that if your Executors follow the terms of your Will completely, then the whole of your estate will be distributed amongst the beneficiaries. Unfortunately, however, this is not always the case.

Occasionally, a Will:

  • does not dispose of all the specific assets;

  • may dispose of part of an asset only (perhaps a house), and make no provision about the rest of the asset;

  • may not contain any provision as to the residuary estate.

This can make way for difficulties.

It’s a common misconception that if the Will does not deal with all the estate, then it is completely null and void. But this is not the case. The Will is still binding as far as all the assets it extends to.

If there is a valid Will but it does not cover the whole estate, then there is said to be a partial intestacy. In contrast, a full intestacy arises when there is no Will at all, or there was a Will but it is invalid.

Effect of partial intestacy

The distribution of an estate where there is full intestacy is carried out according to the rules of intestacy, which – among other things – decide who will receive the estate from a strict order of priority set down in law.

In a partial intestacy, the provisions of the Will are implemented first, and then the intestacy rules apply to the parts of the estate not covered by the Will. In principle, the parts of the estate not covered by the Will are divided according to the same order of priorities. But there are some complicated modifications to the rules, so specialist professional advice would be needed.

Who deals with a partial intestacy?

On a full intestacy, the intestacy rules also determine who will be the administrators of the estate. It’s the same order of precedence as for beneficiaries of the estate.

Where the intestacy is partial, since there are already Executors acting as personal representatives, they would undertake the distribution of the rest of the estate according to the intestacy rules. It’s as if the rules of intestacy were added to the Will to deal with the assets not otherwise covered by it.

Avoiding partial intestacy

A partial intestacy can create complications in an estate which would otherwise be a straightforward one to administer. So it is advisable to ensure that your Will deals with all your estate. The most important things to remember are:

  • if you are identifying specific assets, ensure that the whole of the asset is accounted for (so don’t give a half share in a property to one person without mentioning the other half); and

  • to ensure that there is a clause dealing with your residuary estate.

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