Intestacy

If a person dies without valid Will, they are considered to have died intestate. This creates a difficult situation as no wishes of the deceased may be effected without a valid Will. Generally, dealing with a deceased’s assets when they die intestate will be more difficult. In such cases, it would be prudent to apply for ‘letters of administration’ to administer the deceased’s estate. Letters of administration are granted by the Supreme Court of South Australia and can only be granted to next of kin.

Once a letter of administration has been granted, the burden rests upon the administrator to ensure that the deceased’s assets are distributed to their rightful inheritors. Because the deceased did not leave behind any formal instructions in a will as to how this distribution is to occur, the estate must be distributed according to a statutory order as detailed in the Administration and Probate Act 2019 (SA). The order of distribution varies depending on who survives the deceased. Below is a brief overview of this order.

Where only a spouse or domestic partner survives the deceased

A domestic partner in the context of the Administration and Probate Act refers to someone who is either in a registered relationship with the deceased, or has been declared as a domestic partner of the deceased at the date of the deceased’s death. In this case, the spouse or domestic partner will receive the entirety of the estate. There may be complications if the deceased died leaving behind two domestic partners or a spouse and a domestic partner. In such cases, the estate will be divided between both parties.

Where the deceased is survived by a spouse or domestic partner and children

In this situation, the estate of the deceased will be distributed to both the spouse or domestic partner and the children. The distributions vary depending on the size of the estate. If the estate is worth less than $100,000, the spouse or domestic partner will receive the entire estate along with any personal effects. If the estate is worth more than $100,000, the spouse or domestic partner will be entitled to an amount up to the sum of $100,000, half of the balance of the estate as well as the deceased’s personal effects. Children will be entitled in equal shares to the remainder of the estate.

Where the deceased is only survived by children

The children in this situation would receive the estate in equal shares. If any of the children have died, the children of those deceased child will receive their share equally.

If a person you know has died intestate and you would like some assistance, simply email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.