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Partial Intestacy: Missing Assets In Your Will

What if some of my assets are not covered in my will? This situation is called “partial intestacy”. This article explains what is partial intestacy, why it should be avoided, and how to avoid it.
Alvin T'ngThu Aug 05 2021


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?”.

Where there are some of your assets that are not accounted for in your will, or cannot be distributed according to your will because of certain legal issues (for more information refer to the following section), they will be distributed according to the Intestate Succession Act (Cap. 146)[1]. This situation is called “partial 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 intestacy is, partial and total intestacy, the rules for distributing properties in partial intestacy and why you should avoid partial intestacy. Finally, we look at how you can avoid it.

The situations where partial intestacy arises.

As we have mentioned, 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 these assets cannot be distributed according to your will because that 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, then the assets or gifts that are given to him/her according to the will are null and void. The assets that were given to your beneficiary (who is also a witness to your will) are going to be distributed according to the Intestate Succession Act (Cap. 146) since the gift to the said beneficiary is null and void under 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 on 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]. 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 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 the 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 brothers and sisters, then your grandparents shall take the whole of the estate in equal portions.
If you have no descendants, surviving parents, brothers and sisters, surviving grandparents, or surviving spouse, 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.

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). In other words, because they are distributed by the Intestate Succession Act (Cap. 146) instead or your will, you won’t be able to control how these assets are distributed.

For instance, if you died intestate leaving a spouse, a child and a parent, properties or assets 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, and this may not be what you wish for.

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 distribute the residue of your assets. For instance, 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’s interface automatically includes the residuary clause according to your wishes. It guides you through the whole process and allows to choose your desired executor, appoint a guardian for you children, determine your beneficiaries and you can even choose one of our legal service providers and have a lawyer review and witness your will.

WillCraft is a user-friendly and affordable method to draft your will and make sure that your assets will be distributed the way you want them to. While hiring a lawyer can cost you upwards of $500, at WillCraft you can draft your will right now starting from only $49. Drafting your will with WillCraft is probably the most convenient, affordable and easy to use method to plan your estate.

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 probably the most easy to use, convenient and affordable method to draft your will and avoid partial intestacy.

[1] 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. [2] Wills Act (Cap. 352, 1996 Ed) Section 5. [3] The Administration of Muslim Law Act s. 111. [4] 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. [5] The Intestate Succession Act (Cap. 146) Section (7) Rule 2. [6] The Intestate Succession Act (Cap. 146) Section (7) Rule 9.


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