Aboriginal Estate Administration in South Australia

When a First Nations person dies in South Australia, the legal framework that governs their estate was not designed with their family structure, their cultural obligations, or their communities in mind. The Succession Act 2023 (SA) — which replaced over a century of estate law from 1 January 2025 — is a modernised statute. But "modernised" for the purposes of general Australian society is not the same as "appropriate" for the diverse kinship systems, land relationships, and cultural obligations of Aboriginal peoples across South Australia.

This gap between the statutory framework and lived cultural reality creates real problems for Aboriginal families navigating the estate of a loved one. Understanding where the law applies, where it falls short, and what additional support is available is the starting point for any family in this situation.

What the Succession Act 2023 Says — and Assumes

The Succession Act 2023 governs who inherits when someone dies without a valid will (intestate) and how the estate is administered. Its intestacy distribution rules are built on a specific model of family: a nuclear household consisting of a legally recognised spouse or domestic partner, biological or adopted children, and ascending relatives (parents, siblings, nieces and nephews).

Under the Act, when someone dies intestate, the estate passes in order to:

1. A surviving spouse or domestic partner
2. Children of the deceased
3. Parents
4. Siblings

This hierarchy carries no recognition of:

• Extended family members who shared a household or depended on the deceased economically
• Non-biological kinship relationships recognised under Aboriginal customary law
• Community property obligations or traditional obligations to share with a broader kinship group
• Cultural requirements about who should take responsibility for property, land, or sacred items

For many Aboriginal families — particularly in remote communities, on Country, or within traditional custodial relationships — these omissions are not minor. They can result in statutory intestacy distributions that fundamentally misrepresent who should inherit and who has cultural authority over the deceased's affairs.

The Domestic Partner Question

One of the most common practical barriers for Aboriginal families is establishing that a relationship qualifies as a "domestic partnership" under South Australian law.

The Succession Act 2023 does recognise de facto (domestic) partners, not just legally married spouses. But establishing that status for the purposes of a court application requires evidence — typically financial interdependence, length of cohabitation, and public acknowledgment of the relationship.

For families in remote communities where formal documentation may be limited, where living arrangements are communal rather than couple-centred, or where relationships follow traditional Aboriginal law rather than formal legal recognition, meeting this evidential burden can be difficult. If the community does not use formal lease agreements, bank accounts in joint names, or other documentation that courts typically look for, the surviving partner may struggle to establish their priority entitlement under the Act.

The Public Trustee and the Supreme Court do make case-by-case assessments, but families should be aware that the evidential standards were designed for mainstream living arrangements.

Burial and Cultural Obligations: A Separate and Urgent Issue

Separate from who inherits, the question of who controls the funeral and burial of a deceased Aboriginal person can be deeply contested and culturally significant. The Succession Act 2023 does not directly govern who has authority over the deceased's body — that is managed under the Burial and Cremation Act 2013 (SA) and its regulations.

Under that Act, the authority to arrange a funeral generally follows the same hierarchy as estate administration: spouse or domestic partner first, then adult children, then parents, etc. This hierarchy can conflict with Aboriginal customary law about who within a community has the cultural right and responsibility to oversee burial practices.

Where disputes arise — for example, between a legal surviving spouse (under state law) and a family member with cultural authority under customary law — these are genuinely difficult situations that neither the Probate Registry nor the hospital administering the death is equipped to resolve. The Aboriginal Legal Rights Movement (ALRM) provides advocacy and legal assistance specifically for First Nations people in South Australia and is experienced in navigating these conflicts.

Will-Making in Aboriginal Communities

Having a valid, executed will makes estate administration significantly more straightforward for any family. For Aboriginal families, it also provides a mechanism for explicitly directing assets and personal effects in ways that the intestacy rules cannot accommodate — including gifts to extended family members, community organisations, or culturally significant individuals who would not inherit under the statutory hierarchy.

A will does not override the claims of eligible family provision applicants under Sections 115–116 of the Succession Act 2023, but it provides far more control over distribution than intestacy does.

The ALRM, community legal centres, and some outreach services from the Public Trustee provide will-drafting assistance in Aboriginal communities. Wills must comply with the formal execution requirements in the Succession Act 2023: signed by the testator in the presence of two witnesses, both of whom must witness simultaneously and both of whom must not be beneficiaries under the will.

The Public Trustee and Aboriginal Estates

Where the estate is complex, there is no will, or kinship and community disputes make private administration impractical, the Public Trustee of South Australia often assumes administration of Aboriginal estates.

This has both advantages and limitations. The Public Trustee is experienced in managing complex intestate situations, understands the legal framework, and can navigate court applications without the family needing to do so directly. However, the Public Trustee applies the statutory intestacy hierarchy as written — it does not have authority to distribute assets according to customary law or community preferences that fall outside the legal framework.

In some cases, families have found that the Public Trustee's administration produces outcomes that do not reflect the deceased's wishes or community obligations. If this is a concern, legal advice from the ALRM or a succession solicitor with experience in First Nations matters should be sought before referring the estate to the Public Trustee, not after.

Specialist Resources for First Nations Families in South Australia

Aboriginal Legal Rights Movement (ALRM) ALRM provides free legal advice and representation to Aboriginal and Torres Strait Islander people in South Australia on a range of matters, including estates, succession, and family law. They are experienced in navigating the intersection of state law and cultural obligation and can provide culturally appropriate guidance that a mainstream solicitor may not be equipped to offer.

Public Trustee of South Australia For estates with no will or complex family circumstances, the Public Trustee can administer the estate. Contact them early to understand the process and costs before committing.

Community Legal Centres Several community legal centres in South Australia provide free legal assistance, including in regional and remote areas. Some have outreach programs specifically for Aboriginal communities.

Department of Human Services For families who cannot afford funeral costs, FuneralAssistanceSA (administered by DHS) may cover the cost of a basic cremation. Cultural or religious requirements for burial rather than cremation can be considered in the assessment.

The Broader Picture

South Australia's succession law is not designed to be hostile to First Nations families — but it was designed without them. The statutory intestacy rules, the evidential requirements for domestic partnership, and the formalities of will-making and probate all reflect mainstream legal assumptions that may not map onto Aboriginal family structures, land relationships, or cultural authority.

For families navigating an estate in these circumstances, the most important step is early engagement with organisations that understand both the legal framework and the cultural context. The ALRM in particular can help identify where the law provides a path forward and where advocacy or a formal legal challenge may be needed.

The South Australia Probate Process Guide covers the general probate and estate administration framework under the Succession Act 2023, including intestacy distribution rules, the Public Trustee's role in small and complex estates, and the CourtSA application process for families managing estate administration without legal representation.

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