31 Aug 2023

Expert Blog: Partial Intestacy

Intestacy and partial intestacy are topics that may be alien to the majority of the population.

Not something that you’d consider unless circumstances dictated – if there’s a death in the family or if a loved one passes away, for example - it’s important to know what you’re facing and the possible consequences when the time comes.

In order to understand what a partial intestacy is, it is important be aware of the intestacy rules themselves.

We put these questions to one of our Wills, Probate and Trust team, solicitor Josef Lythe.

What is intestacy?

When someone dies without a valid Will, they die ‘intestate’. This means that the law of intestacy governs what happens to their estate.

The intestacy rules make provision for where the estate’s assets are distributed, which is illustrated in our Intestacy Rules Client Guide.

What is a partial intestacy?

Even if someone dies with a valid Will, the intestacy rules may still dictate how some of their estate is distributed. A partial intestacy is where the otherwise valid Will does not properly deal with an element of their estate.

A common example is where the estate is left to multiple beneficiaries in certain percentage shares. If one of these beneficiaries dies before the Testator (the person who made the Will) and there is no substitute beneficiary or the Will has no alternative provision to cover this situation, then this gift would fail and there would be a partial intestacy. What happens to the pre-deceased beneficiaries share would then be dictated by the intestacy rules.

A partial intestacy can be problematic as it often means that the failed gift is passed to beneficiaries that the deceased didn’t want to inherit.

It can be very complicated should the deceased have no immediate family members, as this may then require the executor to undergo extensive research to locate a beneficiary, which may incur significant time and cost expenses.

How to avoid a partial intestacy

Partial intestacies can be avoided by carefully drafting your Will to ensure it covers a wide variety of situations, for example, what happens to a share should the primary beneficiary die first.

Often partial intestacies arise when the Will has not been properly drafted by a professional.

Instructing a firm, like Winns, ensures a professional will prepare your Will and provide full, clear advice on any implications or problems that could arise.

We would also advise people to keep their Wills up to date. It is easy to forget about your Will once it has been prepared, however we would recommend checking it every five years so it remains relevant.