Partial Intestacy: Does My Will Deal With Everything?
Having your assets distributed to the right people when you die is important. In some cases, though, that might not happen – even if you have a Will in place.
In this article, we’ll explore what partial intestacy is, how it can affect the distribution of your estate, and why it’s important to have a correctly drafted Will.
What is Partial Intestacy?
When a person dies without a Will, they are said to die intestate. Their assets will be distributed according to the intestacy rules of their state or territory.
In Queensland, those laws involve dividing your estate between your spouse and children (or, if you have neither, to other family members). You can read more about how Queensland intestacy rules work here.
A partial intestacy occurs when a person leaves a valid Will that:
- fails to distribute all their assets either by failing to allocate some of their property or by failing to include a clause that would allocate such property; or
- a beneficiary named in the Will has died and the Will does not provide for another beneficiary to receive their share of the inheritance.
A partial intestacy can occur for a number of reasons. Often, it happens because the Will itself fails to take into account certain contingencies or deal with all the assets of your estate.
What Does This Mean for My Estate?
When a person dies partially intestate, the part of their estate not distributed under their Will is subject to the laws of intestacy. What happens to that part of your intestate estate is determined by your family circumstances at the time of your death, rather than by you.
If you have provided for multiple beneficiaries to receive an inheritance under your Will and one of them dies, the part that would otherwise have been received by that beneficiary usually passes to the other beneficiaries proportionally (depending on the wording of the Will). Issues arise when the Will does not provide for a substitute beneficiary or if all the nominated beneficiaries predecease you. In this case, the laws of intestacy will take effect.
Conclusion
Partial intestacy can be avoided by having a thoroughly drafted Will that covers every aspect of your estate. To make sure your estate is distributed in accordance with your wishes, we recommend that you review your Will regularly with the assistance of an experienced estate planning solicitor.
It’s also important to understand that many assets (such as superannuation or assets held within a family trust) do not automatically form part of your estate to be dealt with in accordance with the terms of your Will.
If you’re wondering whether your current Will could leave you open to partial intestacy, contact us to schedule a meeting with a solicitor from our Wills, trusts, and estate planning team. We’ll work with you to make sure your Will is drafted in a way that minimises any risks.
Talk to us by calling (07) 5597 3366, email at law@belllegal.com.au, or by clicking the button below.
The content of this page is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.
