Partial Intestacy: When a Will Doesn't Cover All Assets

What is partial intestacy and how does it affect the estate?

1Partial intestacy occurs when a valid will exists but does not effectively dispose of all of the deceased's assets — leaving some assets to pass under the intestacy rules. This page describes England and Wales.
2Common causes include a residuary gift failing (because the beneficiary predeceased), new assets acquired after the will was made, or a will that was poorly drafted.
3Assets that are not covered by the will pass under the standard intestacy rules, in the priority order: spouse, then children, then parents, then siblings, and so on.
4A residuary clause in a will — 'I give the rest of my estate to...' — is the most important provision to prevent partial intestacy.
5A well-drafted will should include a residuary clause, fallback provisions if a beneficiary predeceases, and be reviewed regularly to account for new assets.

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.

What Causes Partial Intestacy?

Partial intestacy arises when a valid will exists but some assets are not effectively disposed of by the will. The most common causes are:

A beneficiary predeceases the testator. If a gift in the will says “I give my house to my son John” and John dies before the testator, the gift fails unless there is a fallback provision. If there is no residuary clause covering the failed gift, that asset passes under intestacy.
The will has no residuary clause. A residuary clause covers everything not specifically mentioned. Without one, any asset not specifically named in the will passes under intestacy.
New assets acquired after the will was made. If the testator acquired significant new assets after making the will — an inheritance, a new property, investments — and the will predates those acquisitions and has no residuary clause, those assets may not be covered.
A specific gift becomes impossible. If the testator left a specific property to a beneficiary but later sold it, the gift adeems — it simply fails, and the beneficiary takes nothing in its place. That does not by itself create a partial intestacy: the sale proceeds fall into the residue if there is a residuary clause, and only pass under intestacy if there is not.
A void or invalid specific clause. If part of a will is declared invalid (but not the whole will), the invalid part passes under intestacy.
Divorce. On divorce, gifts to the former spouse lapse — but the rest of the will remains valid. Any gift that was conditional on or directed to the former spouse now passes under intestacy (or falls into the residue if there is a residuary clause).

Who Is Legally Entitled to the Undisposed Assets?

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:

Surviving spouse or civil partner
Children (and grandchildren by representation)
Parents
Siblings (whole blood, then half blood)
Grandparents
Aunts and uncles
Crown (bona vacantia)

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.

How Is Partial Intestacy Administered?

Where there is a valid will appointing an executor who is able and willing to act, that executor has authority to administer the estate — including the part that passes under intestacy. The executor deals with both elements. Where the will appoints no executor, or none can act, the grant is letters of administration with will annexed instead.

In the ordinary case the grant is a grant of probate, not letters of administration, because there is a valid will. Either way, the personal representative 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.

See our guide to applying for probate and our complete UK probate guide.

The Residuary Clause: The Most Important Provision in a Will

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:

New assets acquired after the will is made are automatically captured
Assets from failed specific gifts fall into the residue
There is far less risk of partial intestacy

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].”

The Lapse Rule and the Survivorship Clause

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 section 33 of the Wills Act 1837, a gift to a child or remoter descendant of the testator who dies before the testator, leaving issue alive at the testator's death, takes effect as a gift to that issue, 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.

Partial Intestacy After Divorce

One of the most common causes of unintentional partial intestacy is failing to update a will after divorce. Under section 18A of the Wills Act 1837, once a marriage is dissolved or annulled the will takes effect as if the former spouse had died on that date — so gifts to them, and their appointment as executor, fail. The rest of the will remains valid.

If the will had the former spouse as the residuary beneficiary and named no substitute, the entire residuary estate then passes under intestacy — often to the very relatives the testator had chosen not to benefit.

See our guide on dying without a will after divorce and remarriage.

Can Anyone Claim Under the Inheritance Act 1975?

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 date on which representation is first taken out, unless the court gives permission for a late claim.

How to Prevent Partial Intestacy

The key steps to prevent partial intestacy are:

Include a comprehensive residuary clause in your will — covering all assets not otherwise disposed of
Include fallback provisions for residuary and other gifts in case the primary beneficiary predeceases
Review your will regularly — at least every five years, and whenever there is a significant life change (marriage, divorce, birth of children, death of a beneficiary, major change in assets)
Update your will after divorce — immediately, not “at some point”
Check the jurisdiction. This page describes England and Wales. Scots law reaches partial intestacy differently, because legal rights over the moveable estate apply whether or not there is a will

See our guide to writing a will in the UK in 2026.

Practical Next Steps

If you are dealing with a partial intestacy estate, work out which assets the will actually disposes of and which fall outside it, and account for the two parts separately.
Obtain a grant of probate — the executor's authority extends to both the will and the intestate portion. Use our guide to applying for probate.
Value the estate — including the intestate and testate portions separately. Use our estate administration checklist.
If you have a will, review it now — check whether it has a residuary clause and whether all the named beneficiaries are still living. See our guide to finding a will.

Use our probate checklist.

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