What is a Partial Intestacy?
31 August 2017
When someone dies it is ultimately determined whether they have left a legally valid Will. If someone dies leaving a Will, it’s known as dying Testate. If they die without a Will, it’s called dying Intestate.
What Does Partially Intestate Mean?
The laws in England and Wales set out who is entitled to a deceased person's Estate if they die without a Will in place. These laws are known as the Intestacy Rules. The reason for having these laws is to make sure that ultimately everyone's Estate can always be distributed. Obviously society would not work if people’s money and property remained in the name of the deceased person forever.
So the Intestacy Rules are a default mechanism for distributing a person's Estate. They are very specific, setting out the order of priority of a relative's entitlement to inherit. If someone dies without leaving any relatives then the Estate ultimately goes to the Crown (well, the Duchy of Cornwall, to be exact).
Now, it’s not surprising that people want to make sure that their hard earned money and assets go to the people they choose, after their death. They could look to rely on the Intestacy Rules, but they may want to ensure that the right people benefit from their Estate. The way to do this is to put in place a valid Will, so that they die 'testate'.
However, there are circumstances when someone puts a Will in place but the terms of the Will do not actually deal with the whole of the deceased's Estate. This is mainly seen with home-made or DIY Wills, where the words used in the Will aren't adequate from a legal perspective.
When this occurs, it creates a situation where some assets are dealt with under the terms of the Will, but other assets are dealt with in accordance with the Intestacy Rules. This leaves the deceased with the status of dying 'partially intestate'.
When a professional Will is drafted it would normally include a Residuary Gift. A Residuary Gift is typically defined in the Will as being the Estate that's left over after payment of the deceased's liabilities, administration expenses and other specific gifts mentioned. This approach reduces the chances of a partial intestacy occurring.
Another example of when a partial intestacy might occur is where all of the beneficiaries that have been named in the Will have already died. That's why you should always consider substitute beneficiaries. A good professional Will writing service should discuss this with you and understand what your wishes would be in unlikely situations, such as your immediate beneficiaries all dying before you.