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Catherine Schettini

- 8 Oct 2021
  • Wills & Estates

What happens when someone dies without a will?

If someone dies without a Will, they are said to have died intestate.

An intestate estate is distributed according to legislation, which may not necessarily be in accordance with the deceased’s wishes. Pursuant to the Administration and Probate Act 1919 an intestate estate will be distributed according to a statutory order, which differs depending on whether the deceased is survived by a spouse, domestic partner or children.

 

If the deceased is survived by a spouse or domestic partner

If the deceased had a spouse or a domestic partner at the date of their death and no children, the entire estate will pass to the spouse or domestic partner. If an unmarried couple did not register their relationship pursuant to the Relationship Register Act 2016 during the deceased’s lifetime, then there is an added layer of complexity.

If the relationship was not registered, then the surviving partner must first make an application to the Court to be declared a domestic partner of the deceased under the Family Relationships Act 1975. Such an application is normally made in the Magistrates Court of South Australia.

It is possible for both a spouse and a domestic partner of a deceased person to inherit under the laws of intestacy. This may occur where a person separates from their spouse, forms a new relationship which is deemed to be a “domestic partnership”, and then dies without having legally divorced the spouse or having made a Will. In that case, the spouse and domestic partner will share the deceased’s estate equally.

 

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

If the deceased is survived by a spouse or domestic partner and children, then the estate will be distributed as follows:

      If the estate is worth less than $100,000, then the spouse or domestic partner will be entitled to the entire estate (subject to the Court making a declaration of domestic partnership).

      If the estate is worth more than $100,000, then the spouse or domestic partner is entitled to the first $100,000 and 50% of the remainder of the estate.  The remaining 50% of the estate will be divided equally between any surviving children. The spouse or domestic partner is entitled to all the personal belongings of the deceased and has the right to purchase the marital home from the estate.  If the surviving spouse or domestic partner does not have the funds to purchase the home, or cannot financially manage a mortgage, then the marital home may need to be sold in order to provide for the statutory entitlement of the deceased’s children.

If the deceased’s children are aged under 18, then any entitlement that they receive from the deceased’s estate, will be managed by the Public Trustee until they reach the age of 18 years. Likewise, any inheritance payable to an adult child who suffers from a mental incapacity will be remitted to the Public Trustee.

If a child has predeceased the deceased, then their children (the deceased’s grandchildren) would take equally the share that their parent would have been entitled to had such parent survived the deceased.

 

If the deceased is survived by children only

Where the deceased has no surviving spouse or domestic partner, then their surviving children share the estate equally. If a child has died and is survived by their own children, then those children take the parent’s share in equal proportions. Again, the Public Trustee will control the inheritance of any minor children or those who suffer a mental incapacity.

 

If the deceased has no spouse or domestic partner and no children

If the deceased is not survived by a spouse, domestic partner or children then the deceased’s next of kin will equally share in the estate in the following order:

      Parents

      Siblings

      Nieces and Nephews

      Grandparents

      Uncles and Aunts

      First cousins

Ultimately the estate may pass to the State of South Australia if there are no relatives that fit within the categories above.

DBH Lawyers can offer advice for families if there is no will. Our specialist Wills & Estates team is there to help you prepare wills, set up family trusts, understand contesting wills and handle estate administration.