Succession Act 2023 South Australia: What Executors Need to Know

If someone handed you a South Australian probate guide printed before 1 January 2025, you can set it aside. On that date, the Succession Act 2023 (SA) came into force and consolidated three statutes that had governed deceased estates since the early twentieth century. The old Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972, and the Wills Act 1936 were repealed in their entirety. What replaced them is a single, modernised framework with new thresholds, new obligations, and some genuinely useful shortcuts for smaller estates.

This is the most significant change to South Australian succession law since the 1970s. Executors, administrators, and anyone named in a will need to understand what actually changed.

What the Act replaced and why it matters

The three repealed statutes were patchy, inconsistent, and hadn't kept pace with how South Australian families actually lived. The Succession Act 2023 consolidated their provisions into one coherent structure while making substantive changes to intestacy distributions, small estate routes, executor duties, and the rights of family members to contest.

The concurrent change that affected day-to-day administration was the introduction of Chapter 25 of the Uniform Civil Rules 2020, which mandated that all probate applications be filed through the CourtSA digital portal. Sworn executor oaths on paper are gone. Sealed grants with wax and ribbon are gone. The original will must still be physically posted to the Probate Registry, but the application itself lives online.

The small estate threshold: Section 73

One of the most practically useful provisions in the new Act is Section 73. An estate is considered a "small estate" if its total value is $100,000 or less and it contains no real property. In those circumstances, the Public Trustee of South Australia can administer the estate without any Supreme Court application.

The process works by publication: the Public Trustee gives notice to the Registrar of Probates and publishes a notice in the South Australian Government Gazette and on its website. Once that happens, a "deemed grant" is established and the Public Trustee can collect and distribute the estate's assets.

This bypasses the Supreme Court filing fees entirely — which for an estate under $200,000 currently sit at $987. The trade-off is the Public Trustee's own commission, which runs at 4.4% of gross asset value for estates up to $200,000. On a $90,000 estate, that's approximately $3,960. Whether the Public Trustee route is cheaper than self-represented probate depends on the estate's exact value and how much your own time is worth.

The direct transfer rule: Section 100

Section 100 addresses a separate but related problem: what happens when the estate is small but you need to move a modest amount of cash quickly. Under this provision, any person or institution holding $15,000 or less in funds or personal property belonging to the deceased may transfer those assets directly to a surviving spouse, domestic partner, or child — without demanding a grant.

The critical nuance is that receiving the transfer doesn't automatically entitle the recipient to keep the money if the will says otherwise. It removes the administrative barrier; it doesn't override the terms of the will. If siblings are waiting on an inheritance and the bank transfers $15,000 to the surviving spouse under Section 100, the spouse may still need to account for that amount in the final distribution.

In practice, Section 100 frequently collides with bank policy. Individual bank tellers may not be familiar with the provision and may default to requesting a grant regardless. Having a copy of the relevant section to present at the counter can help.

Changes to executor obligations

The Act codified executor duties in ways that impose real personal liability. Section 81 requires executors to distribute the estate "as soon as practicable." That sounds vague, but Section 91 gives it teeth: beneficiaries and creditors can apply to the Supreme Court for compensation if an executor's delay or failure causes them financial loss. Claims under Section 91 must be made within three years of the claimant discovering the breach.

For executors of complex estates, this timeline creates urgency around obtaining the grant and completing the administration. Sitting on estate assets while waiting for disputes to resolve can expose the executor personally if a court later determines the delay was unreasonable.

Section 71 also imposes a formal duty on executors to keep accounts and maintain records. This isn't new in practice, but it's now explicitly statutory.

Right to inspect the will: Section 48

Before the Act, who could demand to see the will was somewhat unclear. Section 48 resolves this by creating a statutory right of inspection that extends to a broad class of people: anyone named in the current will or any previous will, surviving spouses and domestic partners, children, parents, and anyone who would be entitled to inherit under the intestacy rules.

The practical effect is that executors should anticipate demands from family members and be prepared to share or provide copies of the will early in the process. Withholding it from people who have a statutory right to it creates unnecessary conflict.

Revised intestacy distributions

When someone dies without a valid will in South Australia, the Succession Act 2023 governs how the estate is divided. If the total estate is $120,000 or less, a surviving spouse or domestic partner inherits everything. If the estate exceeds $120,000, the surviving spouse receives all personal chattels, a statutory preferential legacy of $120,000, and half of whatever remains. The children share the other half equally.

If no spouse and no children survive the deceased, the estate passes to parents, then siblings, then nieces and nephews or cousins. The statute is exhaustive — there is no residual category where the state simply takes the estate unless the deceased has no relatives at all within the statutory hierarchy.

Family provision claims under the new Act

The Act substantially tightened who can bring a family provision claim and on what grounds. Section 116(2) now requires the court to treat the deceased's wishes as the primary consideration. This is a significant shift from the previous framework, which gave courts broad discretion to rewrite the distribution of an estate in favour of disgruntled relatives.

Eligibility to claim has been narrowed. Grandchildren can only claim if their parent (the deceased's child) has also died, or if the grandchild was being financially maintained by the deceased immediately before death. Stepchildren face a high threshold: they must demonstrate significant vulnerability, total financial dependence, or that they made substantial contributions to the estate. Parents and siblings must prove they actively cared for or maintained the deceased before death or entry into aged care.

The court can now order security for costs against claimants who bring meritless or vexatious claims. Anyone considering a family provision claim should consult a litigation solicitor immediately — this is not an area suited to self-representation under the new framework.

Interstate grants

Section 57 of the Succession Act 2023 simplified what was previously an expensive resealing process. An interstate grant of probate can now simply be registered with the Registrar of Probates, after which it carries the same legal force as a South Australian grant. Executors of interstate estates holding South Australian assets no longer need to go through a full sealing application — but they must still disclose and value the SA assets at registration.

What this means for your administration

The Succession Act 2023 is generally favourable for families handling modest, straightforward estates. The small estate route, the direct transfer provision, and the simplified interstate registration pathway all reduce bureaucratic friction. The offsetting changes — stricter executor liability, narrowed family provision eligibility, and the mandatory digital portal — add complexity that rewards careful preparation.

The South Australia Probate Process Guide is built around the current Succession Act 2023 and the 2025/2026 fee schedule. It covers the CourtSA application sequence, the Section 73 decision tree for small estates, the Land Services SA transmission application, and every threshold and deadline you'll encounter during administration.

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