What Happens If You Die Without a Will in South Australia

When someone dies without leaving a valid will, they are said to have died intestate. In South Australia, the rules for intestacy are set out under the Succession Act 2023 (SA). These rules determine who will inherit the estate, in what proportions, and who will be responsible for administering the estate.

Understanding intestacy is important for individuals, families, and small business owners alike, as the consequences can be far-reaching and often quite different from what the deceased may have intended.

Who Inherits Under Intestacy Rules?

The intestacy rules in South Australia follow a strict order of priority:

1. Spouse or domestic partner – They may inherit the entire estate if there are no children.

2. Spouse/domestic partner and children – The estate is divided between the partner and children, often leading to unexpected financial pressure.

3. Children only – If no partner survives, children share equally.

4. Parents – In the absence of a partner or children.

5. Siblings, nieces and nephews – Where no closer relatives exist.

6. Extended family – Grandparents, uncles, aunts, cousins.

7. The State (Crown) – If no relatives can be found, the estate passes to the South Australian Government.

   
   

Rights of Spouses and De Facto Partners

In South Australia, de facto partners (including same-sex partners) have similar rights to married spouses under intestacy laws, provided they can establish their relationship. This recognition is particularly important in modern blended families.

However, disputes can arise where a relationship is contested or not well documented, leaving surviving partners vulnerable and reliant on costly court applications.

Impact on Children and Blended Families

Children, including biological and legally adopted children, are entitled to inherit under intestacy laws. However, stepchildren do not automatically inherit, which can cause distress in blended families.

For example, if a person dies leaving a spouse and children from a previous relationship, the estate will be divided between them according to the statutory formula – often creating conflict.

What About Small Business Owners?

For small business owners in South Australia, dying without a will can be especially problematic. Without clear instructions:

• Business assets may be frozen during administration.

• Control of the company or partnership may pass unexpectedly.

• The business may need to be sold to satisfy intestacy distribution.

  
  

This can jeopardise both the value of the business and the financial security of employees and family members.

Administration of an Intestate Estate

When there is no will appointing an executor, someone must apply to the court for Letters of Administration. This is often the closest next of kin, but if disputes arise or no one is suitable, the Public Trustee may be appointed.

The Public Trustee can charge significant fees, reducing the estate available for beneficiaries. Delays are also common, leaving families waiting months or even years for resolution.

Risks of Dying Without a Will

• Loss of control – Your assets are distributed according to legislation, not your wishes.

• Family disputes – Especially in blended families.

• Business risks – Uncertainty can harm business operations.

• Delays and costs – Court processes and Public Trustee fees reduce the estate.

• Unintended outcomes – Stepchildren or close friends may be excluded entirely.

Why Make a Will?

A properly drafted will ensures:

• Your assets are distributed according to your wishes.

• A trusted executor is appointed to administer your estate.

• Provision can be made for stepchildren, carers, charities, or other dependants.

• Small business continuity can be secured through tailored succession planning.

  
  

Estate planning also allows you to address powers of attorney, advance care directives, and testamentary trusts, giving greater certainty and protection for your loved ones.

FAQs

Who inherits if you die without a will in South Australia?

It depends on your surviving relatives. A spouse or de facto partner usually takes priority, but children and other relatives may also inherit under the statutory formula.

Does a spouse automatically inherit everything?

Not always. If there are children, the estate is divided between the spouse and children, which may leave the partner without full control.

What happens if no relatives can be found?

The estate passes to the State of South Australia (known as “bona vacantia”).

Can de facto partners inherit without a will?

Yes, but they may need to prove the relationship, which can be complex and stressful.

Do stepchildren inherit under intestacy?

No. Stepchildren are not automatically recognised and would need specific provision in a will.

Final Thoughts

Dying without a will in South Australia can leave families facing legal complexity, disputes, and financial hardship. Whether you’re an individual, part of a blended family, or a small business owner, the risks of intestacy are too great to ignore.

The best protection is a properly drafted will and tailored estate plan that reflects your circumstances.

At Craig McKay Legal, we help South Australians take control of their future with practical, compassionate, and legally sound estate planning. If you want to protect your loved ones and avoid the pitfalls of intestacy, contact our Adelaide office today for clear advice and tailored solutions.

Complimentary Will Review: You can book a complimentary no-obligation telephone Will Review or Enquiry with Craig today to see whether updating your Will is recommended.

This article is for general information only and is not a substitute for legal advice. For advice specific to your situation, please contact our office.