At Family Matters, we deal with a variety of estates and are sometimes faced with complex intestacies when someone dies without a Will. In this article, we will explain the rules of intestacy and what is meant by partial intestacy.
Family Matters can take care of all your Estate Planning Solutions and offer a bespoke Will writing service. Our advisors are here to offer free advice so contact us today for a no obligation consultation.
What Is Intestacy?
‘Intestacy’ is what occurs when a person dies without leaving a valid will. There are several occasions where intestacy can arise. The most common scenario is where the deceased simply does not write a will at all. However, even when someone has left a will, it is possible for someone to still die intestate.
- Where the will they had prepared was not legally sound (for example, not signed or witnessed)
- Where a valid will no longer deals with the ‘estate’ (money, property and possessions) because the sole beneficiary at the date the will was signed was the spouse of the deceased, but they had divorced before their death and no alternative beneficiaries were named.
- Where an individual had made a will, but then married without revisiting it
- In these circumstances, the laws of intestacy will govern the distribution of the individual’s estate and would lead to the whole of the deceased’s estate being dealt with under the statutory intestacy rules.
So if you write a will but it turns out to be legally invalid, it is the rules of intestacy that decide how the estate will be shared out. They place relatives of the deceased in a strict order of priority as follows:
- married partner / civil partner of the deceased
- Other relative
The Rules of Intestacy don’t allow for modern or more complicated family relationships – for example they:
- Make no provision for unmarried / unregistered partners. This means that if no will is made, the surviving partner will not automatically inherit the property and belongings owned in the sole name of the deceased. However, a partner can make an inheritance claim instead, or the family can choose to provide for the partner.
- Only recognise natural and adopted children, not step children. However, in many cases step children will often have a valid claim.
However, it is also possible for a ‘partial intestacy’ to occur.
What Is Partial Intestacy?
Partial intestacy happens when an individual has left a will but, for one reason or another, the will does not deal with the full estate.
Maybe someone left different sized shares of their estate to several people. If one of those beneficiaries has died and no alternative provision has been made in the will, the share to them will fail and if no alternative has been made as to who should benefit in this circumstance, this share falls into intestacy. (The remainder of the will is valid and the rest of the estate will be distributed in accordance with the terms of the will).
What Happens To An Estate On Partial Intestacy?
If partial intestacy occurs, that part of the estate will pass to the deceased’s relatives, in the order outlined above. This means that assets may pass to individuals whom the deceased would not wish to inherit, or to individuals they has never even met.
Not only does a partial intestacy lead to assets passing to beneficiaries the deceased never intended to benefit, it can also prove costly and time-consuming. The executors of the estate may even need to consult a genealogist to discover all possible relatives to determine who would inherit, what may be, a very small share. This can take months, and even once the relatives have been found, making contact can be very difficult. Sometimes relatives cannot even be found, in which case, the executors will incur further costs taking out insurances, or paying money to the courts to comply with their legal and fiduciary duties.
The added complication of a partial intestacy is that the remainder of the will is valid, and therefore there are likely to be beneficiaries inheriting under the will that could lose out on the time and money incurred in tracing unknown relatives and dealing with the issues arising under a partial intestacy.
How Can I Avoid Partial Intestacy?
To avoid a partial intestacy, it is important to ensure that the appropriate legal advice is taken when you write a will. Partial intestacies usually arise where the person making the will has not taken advice from legal professionals on the distribution of their estate.
If your estate has been divided into shares which are to be distributed among various beneficiaries, you will also need to consider what you would like to happen to each share if an beneficiary dies before you. It could be as simple as making provision in the will that any such share will be distributed between the other beneficiaries or given to an entirely different person. Moreover, it is vitally important for people to keep their wills up to date. Partial intestacies often occur because a beneficiary has died many years previously, but the individual has reviewed and updated their will. We generally advise people to review wills around every four to five years, although it should also be reviewed whenever there have been significant changes in an individual’s life such as:
- A death of a beneficiary
- Significant changes in the family relationships
- Changes in the estate value
- Partial intestacies can be extremely stressful and time-consuming for beneficiaries and executors alike. Individuals should therefore take care when preparing their wills to carefully consider how they would like their estates to be distributed, and ensure they review their wills on a regular basis.
Family Matters are here to take care of all your Estate Planning Solutions and offer a bespoke Will writing service no matter the complexity of your situation. Our advisors can offer you free advice on all our services so contact us today for a no obligation consultation.