Understanding the Implications of Dying Intestate

The term ‘dying intestate’ refers to the unfortunate situation where an individual passes away without having a valid Will in place.

What Happens If You Die Intestate?

When a person dies without a Will, their estate is subject to the laws of intestacy, which dictate who is entitled to deal with the estate, and how the assets are to be distributed.

Below is a breakdown of the statutory scheme for how an intestate estate is distributed in South Australia:

1. Spouse/Domestic Partner

In South Australia, if the deceased is survived by a spouse (or domestic partner), but no children, then the estate passes entirely to the spouse (or domestic partner).

2. Spouse/Domestic Partner & Children

If the deceased is survived by a spouse (or domestic partner) and children, but the total value of the estate is less than $100,000, then the spouse (or domestic partner) is entitled to the whole of the estate.

If the deceased is survived by a spouse (or domestic partner) and children, and the total estate value is more than $100,000, then the spouse (or domestic partner) is entitled to the first $100,000 and 50% of the residue of the estate.

The children are entitled to the remaining 50% of the estate, or if a child has predeceased, their share may pass to their descendants.

3. Children Only

If the deceased is survived by children, but has no spouse (or domestic partner), the estate is distributed among the children equally.

4. No Spouse/Domestic Partner or Children

In the absence of a surviving spouse (or domestic partner) or children, the estate is distributed to the following relatives, in the following order:

To the deceased’s parents.
If not to the deceased’s parents, then to the deceased’s siblings.
If not to the deceased’s siblings, then to the deceased’s nephews and nieces.
If not to the deceased’s nephews and nieces, then to the deceased’s grandparents.
If not to the deceased’s grandparents, then to the deceased’s aunts and uncles.
If not to the deceased’s aunts and uncles, then to the deceased’s first cousins.

5. No Spouse/Domestic Partner, Children or Relatives

If there are no surviving relatives of the deceased, the estate is left to the South Australian Government.

6. Public Administrator’s Role

Dying intestate may result in the appointment of the Public Trustee as the administrator of the estate in South Australia in circumstances where there is no one to take on the role of administrator.

Even if the Public Trustee is not appointed as administrator, it is still necessary to provide the Public Trustee with an accounting of the estate.

The Public Trustee charges a percentage of the value of the estate.

7. Challenges & Delays

Intestacy in South Australia can lead to challenges and delays in the administration of the estate.

The lack of a Will may result in disputes among entitled beneficiaries, making the probate process lengthier and more complex.

Please note: In Australia, each State and Territory has its own legislation governing intestacy. The above applies to the laws of intestacy in South Australia. Independent advice should be sought from an estates lawyer who operates in other jurisdictions.

Why Having a Will Matters

Given the potential complications associated with dying intestate, it underscores the importance of estate planning, and having a well-drafted Will in place.

Creating a Will allows you to:

1. Specify Your Wishes

A Will enables you to set out how you would like your assets to be distributed, ensuring that your intentions are clear.

2. Nominate Executors

You can nominate trusted individuals to act as the executors of your estate, streamlining the probate process.

3. Provide for Dependents

If you have dependents, a Will allows you to make provisions for their financial security, including appointing guardians if necessary, and the creation of testamentary trusts for your more vulnerable dependants.

4. Minimise Family Disputes

A well-crafted Will can help prevent potential family conflicts by clearly defining the distribution of assets, potentially reducing the likelihood of disagreements among heirs.