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A Will is a legal document that allows you, the testator, to manage and dictate how your assets are going to be distributed. A common question that most people ask when writing their Wills is “What if some of my assets are not accounted for in my Will?”.
When there are some assets that are not accounted for in your Will, or cannot be distributed according to your Will because of certain legal issues, they will be distributed according to the Intestate Succession Act (Cap. 146) 1. This situation is called “partial intestacy”. That means part of your estate will not be distributed under your Will and is subject to the laws of intestacy.
This is in contrast to total intestacy, which happens when all your assets cannot be distributed according to your Will, or where you do not have a Will at all. In this situation, all your assets will be distributed according to the Intestate Succession Act (Cap. 146).
In this article we discuss what both partial and total intestacy are, the rules for distributing properties in partial intestacy and why you should avoid partial intestacy. Lastly, we look at how you can avoid it.
Situations where partial intestacy arises
Partial intestacy takes place when a person leaves a valid Will, but some of his assets are nonetheless not distributed according to that Will.
This may arise in certain situations. The first is where there is a valid Will, but some of your assets are not mentioned or considered in that Will. The second is where there is a Will, and the Will has considered all your assets, but some of your assets cannot be distributed because the distribution is considered invalid. The distribution of your assets can be considered invalid for many reasons including, incapacity of the testator, fraud, undue influence or if the formal requirements of a Will are not fulfilled 2.
For instance, if one of the beneficiaries is also a witness of the execution of your Will the assets or gifts that are given to him/her as set out in the Will become null and void. Such assets will be distributed according to the Intestate Succession Act (Cap. 46) as the gift has become null and void the moment the beneficiary witnessed the execution of your Will.
The Intestate Succession Act(Cap. 146)
The Intestate Succession Act (Cap. 146) is the legislation regulating the distribution of a person’s assets in both total and partial intestacy. Note that the provisions of this act don’t apply to Muslims, because the distribution of Muslims’ assets after death is regulated under The Administration of Muslim Law Act 3.
In the situation where partial intestacy applies, the Intestate Succession Act (Cap. 146) regulates the distribution of only the assets that are not covered by your Will. The act sets out nine rules that should be followed when distributing your property.
Rules for distributing your properties in partial and total intestacy
**Briefly, these rules state the following: **
- If you die leaving a spouse, no child/children 4 or parent, then your spouse is entitled to the whole of the estate.
- If you die leaving a surviving spouse and a child/children, your spouse shall be entitled to only one-half of the estate 5. Your children shall be entitled to the remaining estate in equal proportions.
- If you die leaving a child/children but no surviving spouse or surviving parent, your child/children shall be entitled to the estate in equal proportions.
- If you die leaving a spouse and a parent/parents but without children, your spouse takes one-half of the estate and your surviving parent/parents are entitled to the other half of the estate.
- If you have no surviving spouse and descendants, then your surviving parent/parents shall be entitled to the whole of the estate.
- If there are no surviving spouse, descendants or parents, then your brothers and sisters shall share the estate in equal portions between them, and where any sibling has passed away before you, then his/her child/children would share his/her portion equally between them.
- If you have no surviving spouse, descendants, parents or brothers and sisters, then your grandparents shall take the whole of the estate in equal portions.
- If you have no surviving spouse, descendants, parents or brothers and sisters or grandparents, then your uncles and aunts shall take the whole of the estate in equal portions.
- Finally, if none of the above applies, then the government will be entitled to the whole of the estate 6.
As above, in the case of a partial intestacy, these rules only apply to assets that are not included in your Will and will be distributed among your surviving family members according to the intestacy rules in Singapore.
Why should everyone avoid partial intestacy?
Partial intestacy refers to a situation where there are assets that are not mentioned in your Will, or situations where there are assets whose distribution is considered invalid. In such situations, the said assets are distributed according to the Intestate Succession Act (Cap. 146), also known as intestacy rules. In other words, because they are distributed by the intestacy rules instead of your Will, you won’t be able to control how these assets are distributed.
For example,
_>If you died intestate leaving a spouse, a child and a parent, properties or assets that were not covered in your Will shall be distributed among your spouse and your child according to the Intestate Succession Act (Cap. 146), but not your parents. This may not be what you wished for. _
It is important to review your Will when significant changes have happened in order to avoid the headaches of partial intestacy. These changes could include the death of a beneficiary, a major change in family relationships, or a change in the value of your estate.
By distributing your estate according to the Intestate Succession Act (Cap. 146) you may not be able to make sure that your loved ones are protected and financially secure in the manner that you intend.
How can you avoid partial intestacy?
To avoid partial intestacy and ensure that all your assets and properties will be distributed according to your Will, you should include a residuary clause.
A residuary clause is simply a clause that deals with or distributes the residue of your assets.
**For example, **
_A typical residuary clause reads as follows: “I give all the rest or remainder of my assets and properties to my daughter.”, or “ I give the residue of my assets and properties to charity.” _ This clause is usually found after clauses that handle specific distributions. Such clauses typically read as follows: “I give $200,000 to my mother”.
A great method to avoid partial intestacy and to make sure that all your assets will be distributed according to your Will is to use WillCraft. WillCraft is Singapore’s First Online Will Making Platform. WillCraft’s interface automatically includes the residuary clause. It guides you through the whole process and allows you to choose your desired executor, appoint a guardian for your children, determine your beneficiaries and on top of it all, you can even have the option of having our own lawyers to review and witness your Will!
WillCraft is a user-friendly and affordable method to draft your Will and ensures that your assets will be distributed the way you want them to. While hiring a lawyer can cost you upwards of S$500, at WillCraft, you can create a formally valid Will from just S$99!
Creating your Will with WillCraft is not only the most convenient and affordable method but also ensures a seamless process, minimising errors and omissions in your Will. Moreover, WillCraft offers a 7-day free editing period, allowing you to review and make any necessary changes to your Will, ensuring it accurately reflects your wishes.
Start drafting your Will with WillCraft today!
Creating your Will with WillCraft is not only the most convenient and affordable method but also ensures a seamless process, minimising errors and omissions in your Will. Moreover, WillCraft offers a 7-day free editing period, allowing you to review and make any necessary changes to your Will, ensuring it accurately reflects your wishes.
Start drafting your Will with WillCraft today!
Note: Trying out WillCraft's interface is free! No credit card is required.
Conclusion
When some of your assets are not accounted for in your Will, they will be distributed according to the rules laid down in the Intestate Succession Act (Cap. 146). This situation is called “partial intestacy”. When partial intestacy arises, you lose control on how these assets will be distributed or who will be your beneficiaries. Accordingly, your loved ones may be deprived of your money when they need it the most.
You can avoid partial intestacy by including a residuary clause. This clause sets out the distribution for the residue or remainder of your assets, and it can be easily done by drafting your Will with WillCraft; it’s the simplest, most convenient and affordable method to draft your Will and avoid partial intestacy.
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Footnotes
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This is the act regulating the distribution of properties in both total and partial intestacy, it came into force on June 2nd 1967, but nothing in this act applies to the estate of any Muslim; as the distribution of Muslims’ estate after death is regulated under The Administration Of Muslim law Act. ↩
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The Intestate Succession Act (Cap. 146) uses the word “Issue”. This includes your children and their descendants ( E.g. children, grandchildren, etc. ). Additionally, “children” means legitimate children, which includes any child adopted by virtue of an order of court under any written law for the time being in force in Singapore. ↩
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The Intestate Succession Act (Cap. 146) Section (7) Rule 2. ↩
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The Intestate Succession Act (Cap. 146) Section (7) Rule 9. ↩
Frequently Asked Questions
How are assets distributed in a partial intestacy situation in Singapore?
In partial intestacy in Singapore, assets not covered by a Will are distributed according to intestacy laws. This means that only the portion of assets not mentioned in the Will is subject to intestacy rules, while assets specified in the will are distributed as per the deceased's wishes.
What is the difference between total intestacy and partial intestacy?
When a person passes away without a valid Will, their estate is distributed based on the laws of intestacy. The main difference between total and partial intestacy lies in whether all or only part of the estate is subject to intestate succession:
1. Total Intestacy: The entire estate of the deceased is subject to distribution according to the laws of intestacy since there is no valid Will to specify how assets should be allocated.
2. Partial Intestacy: Only a portion of the deceased's estate is distributed according to the laws of intestacy. This occurs when there is a Will that disposes of some assets but not all, or when certain assets are not covered by the Will.
In both cases, the distribution of assets will be determined by intestacy laws in Singapore, which outlines how an individual's estate should be divided among their beneficiaries in the absence of a Will.
How can you avoid partial intestacy in Singapore?
Partial intestacy can occur when a person passes away without a valid Will covering all of their assets. To avoid partial intestacy, it is important to create a comprehensive estate plan that includes a Will, trusts, and other necessary documents to ensure that all of your assets are distributed according to your wishes. By carefully documenting your wishes and ensuring that all of your assets are accounted for in your estate plan, you can help prevent partial intestacy and ensure that your loved ones are taken care of according to your wishes. Create your Will with WillCraft now!
What issues can arise during partial intestacy?
Partial intestacy can lead to several issues, including:
1. Distribution of assets: where a person has not specified the distribution of all their assets in a Will, the remaining assets that are not covered by the Will may be subject to intestacy laws. This can result in assets being distributed in a way that may not align with the deceased's wishes.
2. Legal disputes: The lack of clarity regarding the distribution of assets can lead to disagreements among family members and beneficiaries, potentially resulting in legal disputes and prolonged court proceedings.
3. Delays in asset distribution: Resolving issues related to partial intestacy can cause delays in the distribution of assets to the rightful beneficiaries, prolonging the distribution process and causing financial strain on beneficiaries.
To avoid these issues, it is important for individuals to create a comprehensive and legally valid Will that clearly outlines their wishes regarding all their assets to ensure a smooth and efficient estate settlement process.