What is Partial Intestacy?

INTRODUCTION

Most people are familiar with the concept of intestacy in estate planning, where a person dies without a valid Will in place. However, a less understood but equally vital aspect is the concept of "partial intestacy," where a Will is deemed "partially" valid but does not cover the entirety of the Estate or when specific provisions of the Will become ineffective.

This article explores this often-overlooked aspect of estate planning by shedding light on the potential problems partial intestacy can create and how to avoid it. 

A RECAP OF (FULL) INTESTACY

In England and Wales, “intestacy” occurs when a person dies without leaving a valid Will. That person is said to die 'intestate' as opposed to “testate.”

When a person dies intestate, their Estate (property, possessions, money) must be distributed according to several specific rules. These are known as the "rules of intestacy."

The Rules of Intestacy

Under the rules of intestacy, only married or civil partners and certain close relatives can inherit the deceased person's Estate. See the sections below for a more detailed explanation of these strict inheritance laws.

Also, remember that if a Will is considered not legally valid, the intestacy rules will override the wishes expressed in the Will and ultimately decide how the Estate is distributed. You can also read more on this below.

WHAT IS PARTIAL INTESTACY?

There are many partial intestacy “triggers,” but the guiding principle is that when any element of a deceased person's will no longer matches up with the circumstances or status of their Estate, this triggers partial intestacy.

A typical example is any Beneficiary dying before the Testator, and this change has not been reflected in the Will. The share of the Estate will then fall into intestacy, even though the rest of the Will is considered valid, and the Estate can be distributed according to the deceased person's wishes.

THE PROBLEM OF PARTIAL INTESTACY

Risks

Although partial intestacy does not invalidate a Will, it still carries certain risks. One such risk is that the Estate may pass to certain people (e.g. distant family members) whom the deceased person never intended to benefit, as dictated by the rules of intestacy.

There is also the risk that a Will does not deal with the entirety of an estate. Drawing up a Will can sometimes be complicated, and if any mistakes are made, a Will can be declared invalid or partially invalid. 

For example, sometimes a Will may be drawn up by somebody who isn't a qualified professional and has used generic, ambiguous, or confusing wording or terminology.

Under these circumstances, if any gifts made in the Will cannot be distributed to the intended Beneficiaries out of confusion, then it's likely that this part of the Estate may need to be treated under the rules of intestacy.

Problems in Winding Up an Estate

In cases where partial intestacy occurs, the process of winding up an estate can end up being complex, time-consuming, and costly. Identifying Beneficiaries may not be straightforward, and intended Beneficiaries may miss out. This could also result in the intended Beneficiary making a claim against the executor. 

AVOIDING PARTIAL INTESTACY

Writing a Will ensures peace of mind for you and your family. That means ensuring they are looked after, after you pass away, and there are no headaches, tensions, or unexpected costs arising from dealing with your Estate. And remember, it's YOUR peace of mind, too. You want to ensure that your Estate is distributed to your intended Beneficiaries and not to an unintended distant relative.

Thankfully, it's relatively easy to avoid partial intestacy, and we highly recommend the following steps:

• To avoid ambiguity, have your Will drawn up by a competent professional like Squiggle, who knows the industry and is very familiar with the language and terminology.

• Review your Will every three to five years or any time there is a change in your (or a Beneficiary's) circumstances (e.g. marriage, divorce, having children or grandchildren, change in financial circumstances).

• Ensure you appoint substitute Beneficiaries or specify that the share of a Beneficiary who predeceases ("dies before") you is redistributed among the remaining Beneficiaries. 

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