Dying without a will – who is entitled to the Estate?

In circumstances where someone passes away without a valid Will they are said to have died intestate. The manner in which the Estate is administrated and distributed is set out in the Administration and Probate Act 1919 (SA).

The person responsible for calling in the assets, paying any liability and distributing the residue of the Estate is called the Administrator (see our article on Dying without a Will – who administers the Estate?).

The Administration and Probate Act sets out who is entitled to the Estate of the deceased and how much of the Estate. This entitlement cannot be altered without an agreement between the beneficiaries or an Order of the Court.

The below scenarios depend on the value of the Estate and the deceased’s family situation.

Spouse but no children

If the deceased is survived by a spouse or domestic partner and does not have children then the spouse or domestic partner is entitled to the entire Estate.

Children only

If the deceased is survived by a child or children and not a spouse or domestic partner then the child or children (in equal shares) are entitled to the entire Estate.

Spouse and children

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

a) If the value of the Estate is $100,000 or less then the spouse or the domestic partner is entitled to entire Estate.

b) If the value of the Estate is more than $100,000 then:

i) The spouse is entitled to $100,000 plus one half of the balance of the Estate

ii) The child or children (in equal shares) are entitled to the other half of the balance of the Estate

If the deceased’s child or children has not survived but has a child or children (ie the deceased’s grandchildren) then the grandchildren will be entitled to their parent’s share.

No spouse or children

If the deceased is not survived by a spouse, domestic partner or any children but is survived by a parent, brother or sister, grandparent or aunty or uncle of the deceased then the following will occur:

a) The parents will be entitled to the Estate in the first instance (if more than one in equal shares)

b) If the parents have not survived, then the Estate will go to the deceased’s siblings (in equal shares). If a brother or sister does not survive but has a child or children that does, then their share will go to their respective children.

c) If the siblings (or sibling’s children) have not survived, then the Estate will go to the grandparents of the deceased (in equal shares).

d) If the grandparents do not survive then the Estate will go to the deceased’s aunt’s and uncle’s (in equal shares). If the aunties and uncles do not survive but have a child or children that does, then their share will go to their respective child or children.

Only in the circumstances where the deceased is not survived by any of above persons then the Estate will be vested in the Crown.

Inheritance Family Provision Claim

This distribution can be altered if a claimant brings a successful Inheritance Family Provision Claim.

The following people can bring a claim:

• The spouse (husband or wife) of the deceased;
• A person who was married and now divorced from the deceased;
• The domestic partner of the deceased (includes same sex couples);
• A former domestic partner;
• A child;
• A step child of the deceased (in specific circumstances);
• A grandchild of the deceased;
• A parent of the deceased (in specific circumstances);
• A brother or sister of the deceased person (in specific circumstances).

Our article, Contesting a Will when you have been left nothing or not enough, provides further information of Inheritance Family Provision Claims and applies in circumstances where the deceased died intestate.

Johnston Withers Lawyers: Experienced Lawyers in Estate Planning

Johnston Withers Lawyers are experienced in providing advice on intestate Estates. If you’d like advice from one of our will and estate lawyers, please contact Caitlin Walkington on (08) 8231 1110, or get in touch online.