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Most people focus on the risk of dying without any will at all. But there is a less obvious risk: dying with a will that does not cover everything. When a will fails to dispose of some assets — for any reason — those assets pass under the intestacy rules as if no will existed for them. This is partial intestacy, and it can produce unintended consequences that the deceased would not have wanted.
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Partial intestacy arises when a valid will exists but some assets are not effectively disposed of by the will. The most common causes are:
The assets that are not covered by the will pass under the intestacy rules of the Administration of Estates Act 1925 exactly as they would if there were no will at all:
This can produce dramatically unintended results. A testator who carefully crafted their will might find that the assets not covered by it pass to entirely different people than they intended.
For the full intestacy overview, see our main intestacy guide.
Where there is a valid will, the executor named in the will has authority to administer the estate — including the part that passes under intestacy. The executor deals with both elements.
The grant obtained will be a grant of probate (not letters of administration) because there is a valid will. However, the executor must identify and account for the intestate part separately, applying the intestacy rules to those assets.
If the executor is also a beneficiary under the intestacy rules, this creates a potential conflict of interest — similar to the trustee problem in minor children's estates. Legal advice is recommended.
See our guide to applying for probate and our complete UK probate guide.
The single most important clause in any will — from a partial intestacy prevention perspective — is the residuary clause. A residuary clause covers all assets not otherwise specifically disposed of in the will. A typical residuary clause says something like:
“I give the remainder of my estate (including all assets not otherwise specifically disposed of) to [named person or persons].”
With a residuary clause:
A well-drafted residuary clause also includes fallback provisions — what happens if the primary residuary beneficiary predeceases the testator. For instance: “...and if [primary beneficiary] does not survive me by 30 days, I give my residuary estate to [secondary beneficiary].”
Under the general rule, if a beneficiary predeceases the testator, the gift lapses (fails). However, there is an important exception for gifts to children of the testator — under the Wills Act 1837, a gift to a child of the testator that lapses because the child predeceased passes to the child's own children (the testator's grandchildren) unless the will says otherwise.
For gifts to non-children beneficiaries, the lapse rule applies in full — the gift fails and falls into the residue (if there is a residuary clause) or passes under intestacy (if there is no residuary clause).
A survivorship clause — requiring a beneficiary to survive the testator by a set period (commonly 30 days) — is often included to prevent double administration costs in cases of near-simultaneous deaths. It also avoids assets briefly passing through a beneficiary who then dies, potentially creating inheritance tax complications.
One of the most common causes of unintentional partial intestacy is failing to update a will after divorce. On divorce, gifts to a former spouse lapse — but the rest of the will remains valid.
If the will had the former spouse as the residuary beneficiary, the entire residuary estate now passes under intestacy. This is why everyone who divorces should update their will immediately.
See our guide on dying without a will after divorce and remarriage.
The Inheritance (Provision for Family and Dependants) Act 1975 applies to partial intestacy cases as it does to full intestacy. A surviving spouse, child, cohabiting partner of at least two years, or financially dependent person may apply to court for reasonable financial provision from the estate.
Claims must be brought within six months of the grant of probate. Legal advice is essential.
The key steps to prevent partial intestacy are:
Get personalised help from Farra or use our probate checklist.
If you die married with no children and no will, your spouse inherits your entire estate. How the intestacy rules work, what documents are needed, and next steps.
Married with children and no will? Your spouse gets £322,000 plus personal chattels plus half the remainder. Children share the other half. Full UK intestacy rules explained.
Unmarried partners have no automatic inheritance rights under UK intestacy law — regardless of relationship length. What happens to the estate, and what you can do.
Long-term cohabiting partners have no automatic inheritance rights in England and Wales. What the law says, what you can claim, and how to protect your partner.
When someone dies without a will and no surviving spouse, children inherit equally. How UK intestacy rules divide the estate between children, and what to do next.
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