Dying Without a Will

If a person dies without a will their estate is “intestate.” Who inherits an intestate estate is determined by section 105 of the Succession Act 2023 (SA).

If the deceased leaves a surviving spouse or domestic partner and no children, the surviving spouse or domestic partner inherits the entire estate.

If the deceased leaves both a spouse or domestic partner and children, the estate is divided between them. The surviving spouse or domestic partner is entitled to:

  1. the deceased's personal effects (if any);

  2. a legacy of $120,000 (subject to any future indexation under section 105(2)(b) and (5)); and

  3. one-half of the balance of the estate remaining after payment of the preferential legacy.

The deceased's children share equally in the remaining half of the balance in accordance with section 108. If a child has died before the deceased but has left children of their own, those grandchildren generally take their deceased parent's share by representation under section 108.

If there is no surviving spouse, domestic partner or child, the estate passes to the deceased's relatives in a prescribed order under sections 108–109 being:

  1. the deceased's parents;

  2. if neither parent survives, the deceased's brothers and sisters (with the children of a deceased sibling taking that sibling's share by representation);

  3. if there are no siblings or their descendants, the grandparents;

  4. then the deceased's aunts and uncles (with the children of a deceased aunt or uncle taking that person's share by representation); and

  5. if none of those relatives survive, the estate ultimately passes to the Crown as bona vacantia (no one to claim) under s 105(1)(f).

Although a surviving spouse or domestic partner is ordinarily entitled to inherit, section 107 provides circumstances in which that entitlement may be lost, if the parties had undertaken a Family Law property settlement. This was instituted in the Succession Act 2023 in response to a perceived unfairness when someone clearly did not want their ex to inherit their estate and they had undertaken a property settlement.