Intestacy in South Australia: What Happens When Someone Dies Without a Will

When someone dies without a valid will in South Australia, they've died "intestate." It doesn't mean the government takes everything — but it does mean the law, not the deceased, decides who gets what. And the rules changed significantly when the Succession Act 2023 came into full effect on 1 January 2025.

Here's what families need to know when there's no will.

Who Inherits Under the Succession Act 2023

South Australia follows a fixed statutory hierarchy for distributing an intestate estate. The surviving spouse or domestic partner is first in line, but the exact split depends on whether the deceased also had children.

If there's a surviving spouse and no children: The spouse inherits the entire estate.

If there's a surviving spouse and children (who are also the spouse's children): The spouse inherits the entire estate. The children inherit nothing while the spouse is alive.

If there's a surviving spouse and children from a previous relationship: The spouse receives a "preferential legacy" — a fixed statutory amount adjusted periodically — plus a share of the remaining estate. The children from the previous relationship split the rest. This is where blended families run into serious conflict.

If there's no surviving spouse: Children inherit equally. If a child predeceased the intestate person but left their own children, those grandchildren inherit their parent's share.

If there are no spouse, children, or grandchildren: The estate passes to parents, then siblings, then more distant relatives, following the statutory order.

The 2023 reforms specifically increased the preferential legacy for surviving spouses to better reflect current property values and living costs. Under the old legislation, the amounts hadn't been meaningfully updated in decades.

Who Arranges the Funeral

This is an immediate practical question that catches many families off guard. When someone dies with a will, the named executor has the overriding legal authority to arrange the funeral and decide between burial and cremation.

Without a will, there is no executor. The legal authority to arrange the funeral defaults to the highest-ranking next of kin — typically the surviving spouse or domestic partner, then adult children.

If family members disagree about funeral arrangements — common in blended families — the dispute can escalate to the Supreme Court. Funeral directors will pause all preparations when they become aware of a legal dispute over the body.

Applying for Letters of Administration

Without a will, nobody has automatic legal authority to manage the estate's assets. Instead of applying for a Grant of Probate (which validates a will), the highest-ranking next of kin must apply for Letters of Administration through the Supreme Court of South Australia.

The application is filed through the digital CourtSA portal. The process is similar to probate but requires additional steps — most notably, the administrator usually needs to provide a surety bond (an insurance-like guarantee) to protect beneficiaries against mismanagement.

Court fees are tiered by estate value:

• Estates under $200,000: $987
• $200,000–$500,000: $1,973
• $500,000–$1 million: $2,628
• Over $1 million: $3,945

For estates under $100,000 with no real property, the Public Trustee of South Australia can step in and administer the estate without any Supreme Court involvement — publishing a notice in the Government Gazette instead. Many families don't know this option exists and pay for legal representation they don't need.

The $15,000 Small Release Rule

One of the most practical reforms in the Succession Act 2023: financial institutions holding $15,000 or less in cash or personal property belonging to the deceased can release those funds directly to the surviving spouse, domestic partner, or child. All you need is a death certificate and an indemnity form from the bank.

This completely bypasses the need for Letters of Administration on small amounts — critical when a family needs immediate cash to pay for a funeral.

Family Provision Claims

Even without a will, eligible family members can challenge the statutory distribution if they believe it leaves them without adequate provision. Under the Succession Act 2023, claims must be filed within six months of the grant of Letters of Administration.

Eligible claimants include surviving spouses, children, stepchildren who were financially dependent, and former spouses who were receiving maintenance. Missing the six-month deadline generally extinguishes the right to claim.

Joint Property and Superannuation

Two categories of assets sit outside the intestacy rules entirely:

Joint tenancy property: If the deceased co-owned property as joint tenants (not tenants in common), the surviving owner automatically inherits the deceased's share through the right of survivorship. No probate or Letters of Administration required — just an Application to Register Death (Form DOC 73.0) lodged with Land Services SA.

Superannuation: Death benefits are paid according to the super fund's binding death benefit nomination, not the intestacy rules. If there's no valid nomination, the fund trustee decides — which may not align with the statutory hierarchy at all.

Families often assume everything follows one set of rules. It doesn't.

What to Do Right Now

If a family member has just died without a will in South Australia:

1. Secure the death certificate from Consumer and Business Services ($69.50)
2. Check joint tenancy status on any property — this may not need court involvement at all
3. Ask the bank about the $15,000 small release before engaging a lawyer
4. Determine whether the estate is under $100,000 — the Public Trustee route is cheaper and faster

The South Australia Funeral Laws & Consumer Rights Guide includes step-by-step checklists for both intestate and testate estates, plus the exact forms and fee schedules you'll need for each pathway.

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