So you're gone. Kaput. Kicked the bucket. Fallen off the perch or popped your clogs. But, oops you forgot (or chose not to) write a will.
First, I want to be honest: this happens a lot. About half of all South Australians die intestate (which is the fancy legal word for 'without a will'). If you're reading this, chances are someone close to you may have died without one - or maybe you're just here out of morbid curiosity (pardon the pun).
Here's the deal: when someone dies without a valid will in South Australia, the Succession Act 2023 (SA) kicks into gear like a well-oiled, albeit bureaucratic, machine. It lays out a default blueprint for who gets what, and while it tries to be "fair", chances are high it probably doesn't line up with what the deceased would have wanted.
Let's unpack it.
Step 1: Understanding "Intestacy"
Dying "intestate" simply means someone died without leaving a valid will. It doesn't mean all their assets or stuff gets snatched by the government (a common myth), but it does mean the deceased's wishes don't control how their estate is distributed - the law does.
Decisions will be made according to the rules set out in the Succession Act 2023 (SA,) which outlines exactly how a person's Die Pie is distributed when there's no will to follow. Spoiler alert: it's all based on relationships.
Step 2: Who Inherits What?
Let's walk through the most common relationship scenarios and what the law states about distribution.
Surviving Spouse or Domestic Partner (without children) - the surviving spouse or domestic partner will inherit the whole estate including house, car, collection of tea spoons - everything.
Surviving Spouse with children from that relationship - the surviving spouse or partner will receive the first $120,000 of the estate and half of whatever is left. The other half will be split equally among the children.
Spouse with children from another relationship - now things start to get tricky, the spouse will receive the first $120,000 of the estate plus half of the residual. The children from the other relationship receive half of the residual distributed equally between them.
No spouse, only kids - easy! The estate is divided equally between all surviving children. If a child died before you but had their own children, they receive their parents' share.
No spouse or kids - then we start the game of climbing the family tree and start to see how random relatives might benefit from your demise. Your assets will be distributed in the following order, with no consideration for the age, financial position, or relationship you had with any of these people:
- Parents (shared equally)
- If no parent, then siblings
- If no siblings, then nices or nephews
- Then grandparents
- Then aunts or uncles
- Then first cousins
If you've made it to the tippy top of the family tree and there's still no one the estate will go to the Crown (aka the State Government).
Step 3: Who's In Charge?
When there's no will, there's also no named executor (you can read more about the role of executor HERE).
Someone will need to step up and apply to the Supreme Court of South Australia for what's called Letters of Administration.
This person (usually a close family member) becomes the "administrator" and has the same responsibilities as an executor would - gathering assets, paying debts, distributing the estate, and avoiding fights between beneficiaries.
Step 4: Paying Debts and Taxes
Just because someone died without a will, doesn't mean they've dodged a bullet when it comes to paying debts and taxes (another common myth).
Any outstanding loans, credit cards, bills, taxes, and funeral costs will be paid from the estate before any remaining assets are distributed to beneficiaries. If the estate doesn't cover all the debts the family might get nothing.
Note: Heirs don't inherit debt - unless they co-signed it.
🚩 Red Flags and Curve Balls
There's no such thing as a smooth sailing deceased estate and people who leave no instructions (in a will) throw red flags, complications, and curve balls into the mix in all kinds of ways.
✌️ Multiple partners - had a legal spouse AND a domestic partner at different times (or perhaps the same time!)? Whilst the new Succession Act 2023 (SA) has more protections in place for separated couples, without a will there's a high chance there may be competing claims against your estate.
👧 Children under 18 - if you die with children, their inheritance will be held in trust and managed by the administrator of the estate until they turn 18 (or older, depending on court orders). In many cases, this can mean their surviving parent is unable to access funds to help with their education or daily living expenses that the deceased may otherwise have provided for. A will helps create a safety net to protect both minor children and young adults who may not be able to manage a large inheritance at 18.
💔 Estranged family - just because you weren't on speaking terms doesn't mean the law skips them. Intestacy doesn't care about feelings. If you die without a will you have absolutely no say in who is important (or not important).
👀 Does Every Estate Without A Will End Up In Court?
The short answer is no.
But the chances of your family going to court when you don't have a will are WAY higher.
A will is a way for dead people to communicate their wishes when they're no longer able to. When people die without a will they rely on the law to make decisions on their behalf. When the law doesn't deliver the kinds of decisions their family or loved ones are happy with, they have no choice but to use lawyers to argue on their behalf.
South Australia has family provision laws that allow eligible people (such as spouses, kids, or even people who were financially dependent) to challenge the distribution of an estate if they feel they were unfairly left out.
These are complex claims that require legal assistance and hold up the distribution of an estate for months to years.
How Does An Estate Plan Help?
I'm not going to lie, a will doesn't offer a money back guarantee that problems won't arise with the distribution of an estate, but it does limit the fallout.
An estate plan offers the opportunity to:
- Understand exactly what life looks like for the people in YOUR life if you die (not a templated version of what the law thinks life "should" look like)
- Choose who gets what (within the bounds of the law)
- Appoint someone who you trust to carry out your wishes and be the heart of your estate
- Help avoid family dramas, disputes, and delays
- Show people you cared enough not to leave them doing all the heavy lifting
If the Succession Act offers an out-of-the-box, templated, blueprint version of what life looks like after death, an estate plan is a bespoke, made-to-measure, architecturally designed masterpiece.
That's what you deserve.