It surprises many families to learn that a person can leave a valid will and still die intestate — that is, without a will covering everything — just not entirely. When a will deals with some assets but stays silent on others, the gap is filled by the intestacy rules in the Succession Act 1965. The result is one estate governed by two sets of rules at once.
This guide explains what partial intestacy is, what causes it, exactly how the undisposed portion is shared out, and the practical steps that prevent it. It is written for families dealing with an estate now, and for anyone making or reviewing a will who wants to be sure nothing is left uncovered.
What partial intestacy means
Partial intestacy is where a will is valid but does not dispose of the entire estate. The Succession Act 1965 defines an “intestate” as a person who leaves no will or who leaves a will but leaves undisposed of some beneficial interest in their estate. The second half of that definition is what creates a partial intestacy.
Section 74 of the Act sets the rule plainly: where a will effectively disposes of part only of an estate, the remainder is distributed as if the person had died intestate and left no other estate. The undisposed part is treated as a separate intestate estate, independent of anything the will says about the rest.
Common causes of partial intestacy
Partial intestacy is almost always accidental. It usually traces back to a single missing or failed clause, most often the residuary clause — the part of a will that says who receives “everything else”. The table below sets out the situations we see most often.
No residuary clause
The will gives away specific items and amounts but never says who gets “everything else”. Whatever is left over is undisposed.
A residuary gift lapses
The named residuary beneficiary dies before the person who made the will, and no substitute is named. The residue has nowhere valid to go.
A beneficiary cannot inherit
A gift is void — for example, the beneficiary witnessed the will — and the will does not redirect it.
An asset acquired after the will
Property bought or inherited after the will was signed is not covered by any clause, and there is no catch-all residuary gift.
A poorly drafted or partial will
A homemade or incomplete will deals with one or two assets only and is silent on the rest of the estate.
Common causes of partial intestacy under the Succession Act 1965. A clear residuary clause prevents most of these.
| Cause | How it leaves part of the estate uncovered |
|---|---|
| No residuary clause | The will gives away specific items and amounts but never says who gets “everything else”. Whatever is left over is undisposed. |
| A residuary gift lapses | The named residuary beneficiary dies before the person who made the will, and no substitute is named. The residue has nowhere valid to go. |
| A beneficiary cannot inherit | A gift is void — for example, the beneficiary witnessed the will — and the will does not redirect it. |
| An asset acquired after the will | Property bought or inherited after the will was signed is not covered by any clause, and there is no catch-all residuary gift. |
| A poorly drafted or partial will | A homemade or incomplete will deals with one or two assets only and is silent on the rest of the estate. |
A failed gift does not always cause a partial intestacy. Under Section 91 of the Succession Act 1965, a specific gift that lapses or is void normally falls into the residue of the estate, unless a contrary intention appears in the will. So a valid residuary clause catches most failures before any intestacy can arise.
The problem appears when the residuary gift itself fails — for example, the residuary beneficiary dies before the person who made the will and no substitute is named — or when the will never contained a residuary clause at all. At that point there is nothing left to catch the remainder, and Section 74 sends it to the next-of-kin.
How the estate is divided
In a partially intestate estate, each asset follows one of two paths. The personal representative — the person managing the estate — first applies the will to everything it validly covers, then applies the intestacy rules to whatever is left.
Assets named in the will
Pass to the beneficiaries the will names, in the proportions it sets out.
Follows the will
The undisposed remainder
Passes to the next-of-kin in the order set by the Succession Act 1965 — spouse or civil partner, then children, then wider family.
Follows intestacy (Section 74)
How a partially intestate estate is split between the will and the intestacy rules.
| Part of the estate | Where it goes | Governed by |
|---|---|---|
| Assets named in the will | Pass to the beneficiaries the will names, in the proportions it sets out. | Follows the will |
| The undisposed remainder | Passes to the next-of-kin in the order set by the Succession Act 1965 — spouse or civil partner, then children, then wider family. | Follows intestacy (Section 74) |
The undisposed portion follows the same hierarchy as a full intestacy. A surviving spouse or civil partner comes first; where there are children, the spouse takes two-thirds of that portion and the children share the remaining one-third equally. The full order is explained in our guide to intestate succession in Ireland.
A spouse's legal right share in a partial intestacy
A surviving spouse or civil partner has a protected legal right share in the estate, and a partial intestacy does not remove it. Section 115 of the Succession Act 1965 gives the spouse a right of election where a person dies partly testate and partly intestate — that is, where a will covers some of the estate but not all of it.
The spouse can elect to take their legal right share instead. If they make no election, the default applies: they take their share of the undisposed portion under the intestacy rules, plus any gift left to them in the will, and do not separately claim the legal right share. Which option is better depends on the figures involved.
Administering a partially intestate estate
A partial intestacy adds a layer of work for whoever administers the estate. The will still appoints an executor, and that executor remains responsible for the whole estate — including the undisposed part that passes on intestacy.
In practice the executor identifies which assets the will covers, confirms which gifts have failed or fallen into residue, and then applies the intestacy rules to the remainder. Where a will exists, the application is usually for a Grant of Probate — the court's permission to manage the estate — rather than Letters of Administration, even though part of the estate devolves as on intestacy.
For the wider picture of what happens when an estate — or part of one — passes without a will, see our guide to dying without a will in Ireland.
How to avoid partial intestacy
Partial intestacy is almost entirely preventable at the will-drafting stage. The single most important safeguard is a clear residuary clause that names who receives the remainder of the estate after specific gifts are paid.
Naming a substitute residuary beneficiary matters just as much. If the first-named person dies before you and there is no backup, the residue can fail. A well-drafted clause names a fallback, so the gift never has nowhere valid to go.
Finally, review the will after major life changes — buying property, marriage, the birth of a child, or the death of a named beneficiary. Assets acquired after a will is signed are a frequent source of undisposed property when there is no catch-all residuary gift.
Tax on a partially intestate estate
Capital Acquisitions Tax (CAT) applies to inheritances regardless of whether they come through a will or through intestacy. In a partial intestacy, each beneficiary combines what they receive under the will with any intestate share, then measures the total against their tax-free threshold.
The current CAT rate is 33%on amounts above the threshold: €400,000 for Group A (children), €40,000 for Group B (siblings, nieces, nephews, grandchildren, lineal ancestors), and €20,000 for Group C (all others). A surviving spouse or civil partner is exempt from CAT on what they inherit, whether by will or on intestacy.
Should you get professional help?
Partial intestacy is one of the situations where professional guidance genuinely earns its keep. Deciding whether a gift has failed, whether it falls into residue under Section 91, and how the remainder devolves under Section 74 calls for careful reading of the will against the Act.
A solicitor experienced in estate administration can confirm which assets are undisposed, manage the spouse's election if one arises, and ensure the estate is distributed correctly. A tax advisor can check whether CAT applies once the will gift and intestate share are added together. If you are unsure where your estate stands, our free assessment is a calm place to start — or you are welcome to call and talk it through first.