PastPaperHero | Intestacy rules

Learning Outcomes

This article explains partial intestacy and its statutory framework, including:

Definition and scope of partial intestacy
Causes of partial intestacy and common triggers (failed residuary gifts, lapse, ademption, invalid clauses, disclaimers)
Legal consequences and estate administration under the statutory trusts
Statutory trust under section 33 Administration of Estates Act 1925
Order of entitlement and distribution under section 46 Administration of Estates Act 1925
Spouse/civil partner survivorship requirement (28‑day), personal chattels and the statutory legacy
Property passing outside the will and intestacy (beneficial joint tenancies; nominated/life policy benefits)
Interaction between will provisions and intestacy rules
Post‑death tools (disclaimer and variation) and their limits
Practical steps to avoid partial intestacy

SQE1 Syllabus

For SQE1, you are required to understand the rules and practical implications of partial intestacy, with a focus on the following syllabus points:

the statutory framework for intestacy and how it applies when a will does not dispose of the entire estate
the main causes of partial intestacy and how to identify them in practice
the order of entitlement and statutory trusts for distributing assets not covered by a will
the interaction between will provisions and intestacy rules, including the effect on beneficiaries and estate administration
section 33 Administration of Estates Act 1925: statutory trust and PRs’ duties to sell, pay liabilities and hold residue for those entitled
section 46 Administration of Estates Act 1925: spouse/civil partner entitlement (personal chattels, statutory legacy and residue), survival by 28 days, and distribution to issue and remoter relatives
the definition of personal chattels (as amended in 2014) and the current statutory legacy (index‑linked by statutory instrument)
who is excluded from entitlement (for example, cohabitants, stepchildren) and the position of adopted and non‑marital children
property passing outside the will and intestacy (beneficial joint tenancies; nominated/life policy benefits)
the effect of divorce and dissolution on will gifts (not revoking the whole will) and how this can generate partial intestacy
disclaimers and post‑death variations: how they interact with wills/intestacy, and their limits for succession purposes
grant practice on partial intestacy (executors vs administrators, letters of administration with will annexed) and minors’ interests

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

What is partial intestacy, and how does it differ from total intestacy?
If a will leaves specific gifts but omits a residuary clause, what happens to the remainder of the estate?
Who inherits the undisposed portion of an estate on partial intestacy if the deceased is survived by a spouse and children?
Name two common causes of partial intestacy.

Introduction

Partial intestacy arises when a valid will fails to dispose of the whole estate, leaving some assets to be distributed under the statutory intestacy rules. This situation can lead to unintended outcomes and often complicates estate administration. Understanding the legal framework, causes, and consequences of partial intestacy is essential for advising clients and answering SQE1 questions.

The statutory framework rests on two pillars. First, section 33 Administration of Estates Act 1925 imposes a statutory trust over undisposed-of property: personal representatives (PRs) must gather the estate, pay funeral, testamentary and administration expenses and debts, and then hold the residuary balance on statutory trusts for those entitled. Secondly, section 46 Administration of Estates Act 1925 sets the order of entitlement and how the undisposed portion is divided, particularly where a spouse/civil partner and/or issue survive. Always separate assets that pass under the will from those that do not, and remember some assets never fall into a partial intestacy at all (for example, beneficial joint tenancies pass by survivorship and policy nominations pay out to the named beneficiary).

What is Partial Intestacy?

Partial intestacy occurs when a will is valid but does not cover all of the deceased’s property. The undisposed assets are distributed as if the deceased died intestate in respect of those assets. The will remains effective for the property it does dispose of; the intestacy rules fill the gap for the remainder.

Common triggers include an omitted or failed residuary gift, or a specific provision that lapses without an alternative destination. A partial intestacy may also be caused by post‑death events (for example, a residuary beneficiary disclaims), or by legal rules that invalidate certain gifts (for example, a beneficiary who witnessed the will cannot take that gift, though the will itself remains valid). The effect is a “split estate”: part distributed under the will; part under the intestacy rules.

Key Term: partial intestacy
The situation where a valid will fails to dispose of the whole estate, so the undisposed portion is distributed according to the intestacy rules.

Causes of Partial Intestacy

Partial intestacy can arise in several ways:

The will omits a residuary clause, so any property not specifically gifted is left undisposed.
A specific gift fails (for example, because the beneficiary predeceses the testator and there is no substitute).
A clause in the will is invalid (for example, due to uncertainty or lack of capacity).
The will disposes of only part of the estate, intentionally or by mistake.
New assets are acquired after the will is made and not included in the will.
The residuary beneficiary predeceases the testator and the gift is not saved (for example, the beneficiary is not the testator’s issue so section 33 Wills Act 1837 does not apply, and no substitution clause exists).
A gift fails because the beneficiary (or their spouse/civil partner) witnessed the will; the will remains valid but that gift falls into residue, or into partial intestacy if there is no effective residuary gift.
The residuary beneficiary disclaims the gift; unless there is an effective alternative destination in the will, the disclaimed gift can precipitate a partial intestacy.
Divorce or dissolution after the will is made: the will is not revoked, but gifts to the former spouse/civil partner (including appointments as executor or trustee) usually take effect as if they had predeceased. If the ex‑spouse/civil partner was the residuary beneficiary and no substitute is provided, a partial intestacy will arise.
Class gifts that fail (for example, “to my children” where the testator never had children) and conditions precedent that are not satisfied can leave residue or parts of the estate without a taker.

Worked Example 1.1

A testator leaves £10,000 to each of three friends in a will but does not state who should receive the rest of the estate. The testator is survived by a spouse and two children. What happens to the remainder of the estate?

Answer:
The remainder of the estate is not disposed of by the will and will pass under the intestacy rules. The spouse and children will inherit the undisposed portion according to the statutory order.

Legal Consequences of Partial Intestacy

When partial intestacy occurs, the undisposed assets are held by the personal representatives on statutory trust for those entitled under the intestacy rules. Section 33 Administration of Estates Act 1925 provides that, on death, any real or personal estate as to which the deceased dies intestate is held by the PRs on trust with power of sale. Section 33(2) directs the PRs to apply the ready money and net proceeds of sale in paying funeral, testamentary and administration expenses, debts and other liabilities; what remains (the residuary estate) is then distributed to those entitled.

Key Term: statutory trust
A trust imposed by law on undisposed assets of an estate, requiring the personal representatives to distribute them according to the intestacy rules.

The will governs the assets it validly disposes of, and the intestacy rules apply to the remainder. If a will leaves part of the estate on an express trust but fails as to the remainder, the express trust still operates for the part it covers; the statutory trust applies only to the undisposed portion. Practically, the PRs must:

identify the assets that pass under the will and those that fall into the intestacy;
pay liabilities from the general estate in the statutory order before distributing either portion; and
hold the intestate portion on the statutory trusts for those entitled.

A disclaimer of a gift under the will does not prevent the person disclaiming from receiving property to which they are entitled under the intestacy rules. Conversely, where a person would be entitled on intestacy but forfeits or disclaims that entitlement, section 46A Administration of Estates Act 1925 (inserted by the 2011 Act) treats them as having predeceased the intestate so that their issue can take by substitution under the statutory trusts.

Some property never forms part of the estate for succession purposes and so cannot be affected by partial intestacy. Benefits under a beneficial joint tenancy pass by survivorship to the surviving joint tenant(s), and nominated policy proceeds pay to the nominee. Provisions in a will to the contrary have no effect.

Distribution of Undisposed Assets

The undisposed assets are distributed in the same way as in a total intestacy, following the order set out in the Administration of Estates Act 1925 (as amended).

Key Term: order of entitlement
The statutory sequence in which relatives inherit on intestacy, starting with spouse/civil partner and issue, then parents, siblings, and more distant relatives.

The main rules are:

If there is a surviving spouse or civil partner and no issue, the spouse/civil partner takes all (provided they survive the deceased by 28 days).
If there is a surviving spouse/civil partner and issue, the spouse/civil partner receives:
- the personal chattels,
- a statutory legacy (as at 2025, £322,000, index‑linked by statutory instrument),
- and one half of the residue above the statutory legacy;
- the other half of that residue is held for the issue on the statutory trusts.
If there is no spouse/civil partner, the estate passes to issue on the statutory trusts; if none, then to parents; if none, brothers and sisters of the whole blood (on statutory trusts), then of the half blood (on statutory trusts), then grandparents, then uncles and aunts of the whole blood (on statutory trusts), then of the half blood (on statutory trusts).
If there are no entitled relatives, the estate passes to the Crown, Duchy of Lancaster or Duke of Cornwall as bona vacantia.

Key Term: personal chattels
Tangible movable property (for example, furniture, jewellery, vehicles) excluding money, securities and property used solely for business purposes or held solely as an investment.

Key Term: statutory legacy
The fixed sum payable to a surviving spouse/civil partner where the deceased also leaves issue. It is set by statutory instrument and index‑linked (as at 2025, £322,000).

Key Term: issue
Lineal descendants of the deceased: children, grandchildren and further direct descendants, who take on the statutory trusts per stirpes.

Key Term: bona vacantia
Property that passes to the Crown when a person dies intestate and has no entitled relatives.

Where issue take on the statutory trusts, shares devolve per stirpes and vest at 18 (or earlier marriage/civil partnership). If a child dies under 18 leaving issue, those issue can take by substitution; if they die under 18 without issue, their prospective share accrues among the other statutory beneficiaries. Adopted children are treated in the same way as biological children of the adoptive parent(s), and discrimination between marital and non‑marital children has been abolished. Stepchildren are not “issue” for intestacy purposes unless adopted.

A spouse or civil partner must survive the deceased by at least 28 days to inherit on intestacy. Separation is irrelevant; unless divorce/dissolution has been finalized before death, the spouse or civil partner remains entitled under section 46. Cohabitees have no automatic entitlement under the intestacy rules.

Worked Example 1.2

A will leaves a house to a niece and £5,000 to a friend. The testator’s remaining assets are not mentioned in the will. The testator is survived by a spouse and one child. Who inherits the remaining assets?

Answer:
The house and £5,000 pass under the will. The remaining assets are distributed under the intestacy rules: the spouse receives personal chattels, a statutory legacy, and half the residue; the child receives the other half of the residue.

Practical Implications

Partial intestacy can cause several difficulties:

Beneficiaries may not receive what the testator intended.
The estate may be distributed to distant relatives or the Crown.
Administration is more complex, as both will and intestacy rules must be applied.
Additional costs and delays may arise in tracing beneficiaries.
PRs must decide which liabilities fall to which part of the estate; however, in practice, funeral, testamentary and administration expenses and debts are paid from the general estate before distributing any portion.
If minors become entitled under the statutory trusts, at least two PRs/administrators may be needed to receive the grant, and ongoing trust administration will be required until vesting at 18 or marriage/civil partnership.
A beneficiary’s disclaimer of a will gift may divert value unexpectedly to another will beneficiary or, if residue is ineffective, to the persons entitled on partial intestacy. A disclaimer of an intestacy entitlement operates as if the disclaimant had predeceased for substitution by their issue.
Property passing outside the estate (for example, the deceased’s joint tenancy share or nominated policy proceeds) cannot be marshalled to make up shortfalls caused by partial intestacy and may skew overall outcomes.

Revision Tip

To avoid partial intestacy, always include a clear residuary clause in a will and review the will after major life events or asset changes.

Avoiding Partial Intestacy

Solicitors should advise clients to:

Include a comprehensive residuary clause in every will.
Name substitute beneficiaries for specific gifts.
Regularly review and update wills, especially after acquiring new assets or changes in family circumstances.
Check for any uncertainty or invalidity in will clauses.
Consider including a “longstop” residuary beneficiary (often a charity) if primary arrangements fail.
Use wording that anticipates family changes (for example, class gifts to “such of my children as survive me” with substitution for issue) to minimise lapse.
Include survivorship provisions (for example, 28‑day survival for beneficiaries) to control devolution if deaths occur close together and avoid property passing through multiple estates.
Address “charged” property and tax with clear directions (for example, property “free of mortgage” or gifts “free of tax”) so that, where residue is effective, burdens fall where intended.
Warn that marriage can revoke a will unless it is expressly made in contemplation of that marriage; divorce/dissolution does not revoke the entire will but will generally revoke gifts and appointments in favour of the former spouse/civil partner, potentially creating partial intestacy if no substitutes are named.

Worked Example 1.3

A testator leaves a will giving £20,000 to a brother and the residue to a spouse. The brother dies before the testator, and there is no substitute named. What happens to the £20,000?

Answer:
The gift to the brother lapses and falls into residue. If there is a valid residuary clause, the spouse will receive the lapsed gift. If there is no residuary clause, the £20,000 will pass under the intestacy rules.

Worked Example 1.4

A will made before divorce leaves residue to the testator’s spouse, with no substitution. The couple later divorce. The testator makes no new will and dies survived by two siblings and no issue. What happens to residue?

Answer:
Divorce does not revoke the whole will, but gifts to the former spouse are treated as if the former spouse had predeceased. The residuary gift therefore fails. With no substitution, that part of the estate passes on partial intestacy. As there is no surviving spouse or issue, the siblings of the whole blood take under the intestacy rules on the statutory trusts (if applicable).

Worked Example 1.5

A will leaves residue “to my friend A.” A survives but executes a deed of disclaimer of the residuary gift. The deceased is survived by a civil partner and one child. How is residue distributed?

Answer:
The residuary gift is disclaimed and so cannot take effect for A. With no alternative destination in the will, the disclaimed residue passes on partial intestacy. The civil partner takes personal chattels, the statutory legacy (currently £322,000), and half the balance of residue; the child takes the other half of that balance on the statutory trusts.

Worked Example 1.6

The deceased’s will leaves cash legacies but is silent about a bank account held jointly with the deceased’s sister as beneficial joint tenants. There is also an undisposed investment portfolio. Who takes the joint account and the portfolio?

Answer:
The joint account passes by survivorship to the sister outside the will and intestacy. The undisposed investment portfolio forms part of a partial intestacy and is distributed under the intestacy rules to the persons entitled in the statutory order.

Worked Example 1.7

A will leaves residue to the testator’s civil partner. The civil partner survives the death by 10 days and then dies. There is one child. Does the civil partner take the undisposed portion on partial intestacy?

Answer:
For intestacy entitlement, the spouse/civil partner must survive by 28 days. As the civil partner did not, they are treated as having predeceased for intestacy purposes. The undisposed portion is therefore distributed as though there were no surviving spouse/civil partner: to the child on the statutory trusts.

Worked Example 1.8

A testator dies leaving no effective residuary gift. The undisposed portion passes to two minor children on intestacy. What grant and administration issues arise?

Answer:
Because minors are entitled under the statutory trusts, at least two administrators will be required to take the grant (letters of administration with will annexed if there is a will but no executor able/willing to act, or simple letters of administration on a total intestacy). The administrators/PRs will hold the children’s shares on statutory trusts until vesting at 18 (or earlier marriage/civil partnership), with powers of maintenance and accumulation.

Summary

Partial intestacy arises when a will does not dispose of the whole estate. The undisposed assets are distributed according to the statutory intestacy rules, which may produce outcomes the testator did not intend. PRs must apply section 33 Administration of Estates Act 1925 to hold the undisposed portion on statutory trusts and distribute it under section 46. The presence of a surviving spouse/civil partner (with the 28‑day survivorship requirement), personal chattels, the statutory legacy and the order of entitlement are central to the calculation. Some assets never fall into a partial intestacy (for example, joint tenancies and nominated benefits), which can further skew the distribution. Careful drafting—especially an effective residuary gift with substitutes and a longstop—regular will reviews after life events, and attention to survivorship, charging and tax clauses are the key preventative tools.

Key Point Checklist

This article has covered the following key knowledge points:

Partial intestacy occurs when a will fails to dispose of the entire estate.
Personal representatives hold undisposed assets on the section 33 statutory trust and must pay liabilities before distributing.
The undisposed portion is distributed under the section 46 statutory intestacy rules.
If a spouse/civil partner and issue survive, the spouse/civil partner takes personal chattels, the statutory legacy (as at 2025, £322,000) and half the residue; issue take the other half on statutory trusts.
A spouse/civil partner must survive the deceased by 28 days to inherit on intestacy.
Issue take per stirpes on statutory trusts, vesting at 18 or earlier marriage/civil partnership; adopted children are treated as children of the adopter; stepchildren and cohabitants have no automatic entitlement.
Property passing by survivorship or nomination lies outside the will and intestacy and cannot remedy a partial intestacy.
Divorce/dissolution does not revoke the whole will, but gifts and appointments in favour of the former spouse/civil partner fail and can create a partial intestacy if substitutes are not provided.
Disclaimers of will gifts do not bar entitlement on intestacy, and disclaimers or forfeiture of an intestacy entitlement are treated as if the person predeceased, allowing substitution by issue.
Administration may be more complex on a partial intestacy; minors’ interests require trust administration and typically two administrators.
To avoid partial intestacy, include a comprehensive residuary gift with substitutions and a longstop beneficiary, add survivorship provisions, and review the will after major life or asset changes.

Key Terms and Concepts

partial intestacy
statutory trust
order of entitlement
personal chattels
statutory legacy
issue
bona vacantia

Intestacy rules - Partial intestacy