In the simplest scenario, intestacy happens when an individual dies without leaving a will.
Sometimes intestacy happens even if there is a will — such as when it hasn’t been properly signed or witnessed, or where someone has divorced and failed to name new beneficiaries.
Partial intestacy happens when a person has left a will, but for some reason, the will doesn’t deal with their whole estate.
What causes partial intestacy?
There are lots of reasons why partial intestacy can happen because it occurs when the contents of a deceased person’s will no longer matches the status, structure or circumstances of their estate.
They might, for example, have left their estate to several different people, but if one or more of these beneficiaries dies during their lifetime, and no changes have been made to accommodate the change, the share will fall into intestacy.
The rest of the will is still valid, so the remainder of the estate can be distributed in line with the deceased person’s wishes.
What happens to the estate?
When part of an estate is affected by partial intestacy, that proportion passes automatically to the deceased person’s relatives, according to the law of intestacy. You can read all about the full intestacy rules in our article here.
The problem here is that assets can end up with people who were not in the original will and even with distant relatives who the deceased person never met. Here, things can get more complicated — and expensive.
What kind of problems does partial intestacy cause?
Once partial intestacy happens, and assets are passed to people who the deceased never wanted to benefit from them, the executors of the estate may have to consult a genealogist. This would be necessary to track down any relatives who might be in line to inherit the disputed elements. Naturally, this can be a lengthy process, and even when relatives are found, actually making contact can be difficult. There’s every chance that these relatives can’t be located, and here, the will’s executors will incur further expenses, to cover safeguarding, insurance or court payments and comply with their legal duties.
None of this is good news for the beneficiaries of the valid, uncontested parts of the will. It will often be their time and money wasted while hard-to-find relatives are traced and verified.
So how can you avoid the headaches of partial intestacy?
There are steps you can take to avoid the stressful complications of partial intestacy. Here are some key points to consider.
Always take professional legal advice when making your will. Partial intestacy commonly occurs where the person making a will has not taken specialist legal advice on the detailed distribution of their estate
Think about what you would like to happen if a chosen beneficiary dies before you. It might just mean ensuring that shares are distributed between other named beneficiaries, or perhaps given to a completely different beneficiary, like a charity for example
Keep your will up to date. If you take some time to update your will regularly, you can avoid the problem of leaving assets to beneficiaries who have died before you. Every four or five years is a sensible time frame
Review your will when important changes occur. In addition to timely checks, it’s important to review your will when significant changes have happened. These could include the death of a beneficiary, a major change in family relationships, or a change in the value of your estate
The importance of power of attorney in your plans
While it pays to ensure that your will is up to date and protected from the pitfalls of intestacy, there are other important steps to consider while organising your affairs for later life. The power of attorney is a good example and can help to protect your estate and your family.
Power of attorney gives legal power to one or more carefully chosen people who you trust implicitly — they will be known as your attorneys. You may wish to grant power of attorney if you have spent time in hospital, or you have become ill and can no longer make decisions for yourself — for example, if you have developed dementia or have suffered a stroke.
Types of power of attorney
General power of attorney: This is for when you still have mental capacity but gives your chosen attorney the authority to make decisions and take actions regarding your finances.
Lasting power of attorney: There are two different types of lasting power of attorney. One is for property and finances, whilst the other relates to health and welfare. Both are designed to allow your attorney to make key decisions with your permission or should you lose mental capacity — either concerning your finances or health and care needs.
Enduring power of attorney (EPA): This is an older version of what is now the lasting power of attorney and relates specifically to property and financial affairs. The change came on 1 October 2007, but if you set up an EPA before this date it will still be valid.
Whether planning to avoid problems with your will and estate or ensuring that you have a trusted attorney with your best interests at heart, it’s all about knowledge and timely preparation. That’s why it can make good sense to consult a professional solicitor before making big decisions for later life.
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