Many Australians delay or avoid making a Will, often assuming their assets will automatically pass to their loved ones. However, dying without a valid Will—known as dying intestate—can lead to significant legal, financial and emotional consequences.

While intestacy laws exist across Australia, the risks of relying on these laws in lieu of having a Will are particularly important to understand. It is also important that a Will is carefully drafted with the help of a lawyer to avoid later issues challenging its validity, which (in a worst case scenario) may cause the default intestate laws being applied in any event.

In South Australia, the Succession Act 2023 (SA) governs how estates are distributed in the event that a person dies intestate. There is similar legislation existing in each State and Territory of Australia. However, the legislation rarely reflects the nuanced realities of modern families and having a Will is generally the preferred course for everyone.

What happens if you die without a Will?

1. Your wishes may not be followed

If a person dies intestate, a fundamental risk to most persons is that their estate is distributed according to the default position set out in legislation rather than in accordance with their personal wishes.

In South Australia, this generally means:

• A spouse or domestic partner may inherit all or part of the estate;
• Any children may share in the estate, however, at present, if the estate is worth no more than $120,000, then a spouse or domestic partner inherits the whole estate;

(If the estate is worth more than $120,000, the spouse or domestic partner inherits half the estate, and any children are then distributed the balance in equal parts if more than one child.)

• However, if there is no spouse, partner or children, the estate passes through a hierarchy of relatives as set out in the legislation (i.e. to any parents, then siblings or nieces and nephews, then grandparents, and then aunts and uncles or cousins);
• If no eligible relatives can be found, the estate ultimately passes to the South Australian Government.

This default position as to distribution of an intestate estate can lead to unintended outcomes, such as:

• Estranged relatives inheriting your estate;
• Close friends, carers or charities receiving nothing;
• A public office administering a deceased’s estate; and
• In some instances, the South Australian Government inheriting a person’s estate.

2. Additional hurdles for your loved ones to administer your estate

Before any distribution of an intestate estate occurs, someone must apply to the Supreme Court for Letters of Administration, adding time, cost and complexity.

Importantly, without a Will:

• There is no appointed executor (being the person who is responsible for administering a deceased’s estate);
• An eligible person must apply to the Court to administer the estate;
• The process is often slower and more expensive.

In particular, section 75 of the Succession Act means that the Public Trustee is appointed by default as the executor, and their costs of administering an intestate estate, even a small estate, can be costly.

In general, the legal fees, administrative costs and delays involved in this process can substantially reduce the estate available to beneficiaries.

3. Increased risk of family disputes

The default position as to distribution of an intestate estate can lead to unintended outcomes. Disagreements may arise, and court proceedings may brought concerning:

• Who should administer the estate;
• How assets should be distributed; and / or
• Whether someone should receive a greater share.

4. Blended families may be disadvantaged

Modern family structures are not well accommodated by intestacy laws.

In South Australia:

• Stepchildren are not automatically entitled to inherit;
• Partners and children from different relationships may be forced to share the estate in a way that creates tension or financial hardship.

Stepchildren or dependants may need to bring a family provision claim to seek provision, adding further legal complexity and expense.

4. Uncertainty for De Facto Partners

Although de facto partners can have rights under South Australian law, they may need to prove the existence of the relationship, particularly if it is disputed.

This can create significant uncertainty and delay at an already difficult time.

Why this all matters

While the legislation aims to provide a fair and structured framework for when a person dies without a Will, it remains a default system, and not a personalised one. It cannot:

• Account for complex family dynamics;
• Reflect personal relationships or intentions;
• Minimise the risk of disputes; or
• Reduce the potential costs and stress that your family may experience in administering the Will.

In short, dying without a Will leaves critical decisions about your estate in the hands of legislation rather than you and, for most people, the risks of intestacy far outweigh the time and legal cost involved in preparing a Will.

If you would like any assistance with drafting estate documents, or have any other concerns or questions regarding estate planning or disputes, please contact Peter Charatsis, Brenton Priestley, Chris Andonas, Clairissa Hewitt or Charlie Bruce.

The above is general in nature and is not intended to, and does not, constitute professional advice.