Can Only Parts of Estates Be Disbursed in Wills?

by Beverly Bird

It’s surprisingly common for a will not to include all of a decedent’s property. He might acquire an asset after he writes his will then forget to amend the will to pass it on to a beneficiary. He may leave a bequest to one individual, but make no provision for what should happen if that individual predeceases him. When this occurs, the decedent has died “partially intestate.” Omitted property must pass according to his state’s laws of intestate succession, or by some other means, because his will doesn't account for it.

Protect your loved ones by a legally binding will. Make a Will Online Now

Partial Intestacy

When a decedent’s will does not address who should receive a particular asset, it usually passes to his next of kin according to his state’s laws of intestate succession. This is a prescribed order of heirs who inherit when a loved one leaves no will at all. In most states, this means his surviving spouse and his children have the first right to it and it’s usually disbursed to them in percentages. For example, if the decedent bought a parcel of land valued at $100,000 but didn't mention it in his will, the intestacy laws in his state might award his spouse a $50,000 share of it, or half the asset. If he had four children, they might each inherit a $12,500 share, or one-quarter of the $50,000 balance. In the case of a deceased beneficiary, the property would usually pass to that beneficiary's offspring by a legal concept called "representation." For example, if the decedent left the parcel of land to his son, but his son predeceased him, the property would usually revert to his son’s children in equal shares.

Pour-Over Wills

Pour-over wills disburse only a portion of a decedent’s property. A pour-over will is a type of will that transfers the decedent's assets to a trust he created during his lifetime. Decedents typically leave pour-over wills when they have created a trust to distribute and manage their assets after their deaths. If a decedent neglects to transfer an asset to his trust during his lifetime, a pour-over will catches this mistake. It directs that any assets not included in his trust should move into his trust when he dies. Pour-over wills pass through the probate process just as other wills do. However, the decedent’s trust is the will’s beneficiary, not a person.

Non-Probate Property

Many estates include both probate and non-probate property. The probate process transfers title to property from the decedent to his chosen beneficiaries. These are probate assets. However, when an asset transfers directly to a beneficiary by contract, probate of such property isn't necessary. These are non-probate assets. For example, the decedent might have left a life insurance policy. If he named his estate as the beneficiary, the court would disburse the death benefit according to the terms of his will. However, if he named his son as his beneficiary, the insurance company would pay the death benefit to the son and this would bypass probate. The court does not disburse such assets according to the terms of the decedent's will.

Intentional Intestacy

Some individuals intentionally elect to make use of their state’s laws of intestate succession. In this case, their assets might transfer to unnamed heirs outside of their wills. For example, a decedent might have only one son and no living spouse. He might leave everything to his son in his will. His son may not have children of his own at the time the decedent writes his will so he can’t name these children and award them his son’s bequest if his son predeceases him. In this case, his will might say that his estate passes according to his state’s laws of intestacy succession if his son predeceases him. The court probates his will to create a legal record of it, but no property actually transfers under its terms.