Contact FJS Lawyers to have a will prepared which properly documents your wishes, taking into account your personal circumstances.
What Are Intestacy Laws?
In the Succession Act 2023, the general rules as to the distribution of an intestate estate are found in Division 3, section 105. In simpler terms, the rules state that:
- If you die without a will and leave behind a spouse or domestic partner but no children, then your partner inherits the entire estate.
- If you die without a will and leave behind a spouse and children, your spouse inherits the entire estate if the estate is small.
So, who determines if the estate is small? Here’s how it works: There’s a preferential legacy, which is the amount a surviving spouse is entitled to from an intestate estate, and it’s set at $120,000 in the Succession Act 2023. If you die without a will and your estate is less than $120,000, then your spouse will inherit the entire estate, whether or not you have children.
- If the estate is more than $120,000, then your spouse receives the preferential legacy ($120,000) first, plus half of the remaining estate. If you have children, they share the other half equally according to section 108 of the Succession Act, which also says inheritance can be passed down through generations. If your child has passed away but has living children, then those children inherit their parent’s share.
- If you die without a will and have no spouse or children, then your estate goes to your living relatives according to sections 108 and 109. The order of inheritance depends upon the ‘degree’ of your relatives, found in section 101 – Interpretation:
- A relative of the first degree is a parent
- A relative of the second degree is a sibling
- A relative of the third degree is a grandparent
- A relative of the fourth degree is a sibling of a parent (i.e. uncle and/or aunt)
- Finally, the government of South Australia will inherit your entire estate if you die without a will and have no living relatives.
Now that you have a good idea of what happens if you die without a will in South Australia, let’s apply this to a real-life scenario:
Mr. Jones dies without a will, and his estate is worth $500,000.
- If Mr Jones has a spouse, they inherit the first $120,000 as a preferential legacy.
- If Mr Jones has no children, the spouse inherits the remaining $380,000.
- If Mr Jones has a spouse and two children, the spouse inherits another $190,000 (half of the $380,000) and his children share the other $190,000 equally.
- If Mr Jones has no spouse and two children, they inherit the $500,000 equally.
- If Mr Jones has no spouse and no children, his estate will be inherited by his surviving relatives (in order of priority as to the degree of relative, mentioned earlier).
What Could Go Wrong If You Die Without A Will?
The first thing that could go wrong is that your wishes are not known and/or fulfilled.
The Succession Act seeks to provide an equitable distribution of an intestate estate, but it does not consider if you are estranged from certain members of your family, or even your entire family.
Disputes about inheritance often require court proceedings and this can be costly and time consuming. The value of the estate can be substantially reduced by legal fees.
There are certain groups of people who are not prioritised under the Succession Act. This may include stepchildren and de facto spouses.
Stepchildren may apply to the court for a share of the estate, but the process is stressful, lengthy and costly. If you wish for your stepchildren to inherit your estate, you should have a will prepared which properly documents your wishes.
De facto partners may apply to the court for a share of the estate, but this may require them to prove they were in a relationship with you. This may be difficult if you didn’t have a child together or keep any proof of financial interdependence.
If you own a property with another person as “joint tenants”, your share of the property will automatically go to the survivor upon your death and will not form part of your estate. Your share in a property will only form part of your estate after you die if the property is owned as “tenants in common”.
Another popular source of disputes when people die without a will in South Australia is the deceased’s superannuation funds. Superannuation is not automatically considered to be part of the estate. The Trustee of the superannuation fund determines who will receive your superannuation or if it is paid into your estate. FJS Lawyers will advise you about creating a Binding Death Benefit Nomination (BDBN) to pay your super to nominated beneficiaries, rather than at the discretion of the Trustee.
How Is An Intestate Estate Managed Legally?
If you die without a will in South Australia, the Supreme Court of South Australia will first appoint someone to manage it, and this is done by applying for Letters of Administration. The order of priority in this appointment is spouse> children> parents and siblings> a creditor or an interested party. Any person over 18 years of age who can prove a close relationship to the deceased can apply to the court for Letters of Administration.
If the courts deem that no one is suitable to be appointed as administrator of the estate, then the Public Trustee will step in to administer the estate. The Public Trustee may also distribute the estate if there are disputes between family members, the estate is small or complex, or there are no known next of kin.
Write Your Will Today To Document Your Wishes
If you die without a will in South Australia, your closest loved ones may be left to deal with stress, uncertainty and legal proceedings, while grieving your loss. You can avoid this by reaching out to FJS Lawyers to have your will prepared to properly address your circumstances and guarantee your loved ones’ peace of mind.