My loved one has passed without a valid Will in place – What should I do?

Dealing with the death of someone close is incredibly emotional and difficult. Often there is a lot of uncertainty, stress and confusion about what to do next.

Dying without a Will in South Australia: what happens to your Estate?

If someone passes away without a valid Will, it doesn't mean their assets are left in limbo, but it does mean the law steps in to decide what happens next, rather than the person themselves. For families already dealing with loss, this can add a layer of stress and uncertainty at an already difficult time.

Here's what you need to know if you're facing this situation, or if you simply want to understand why having an up-to-date Will matters so much.

What does it mean to die "intestate"?

A person is considered to have died intestate when they pass away without a valid Will, or when their Will doesn't properly deal with all (or part) of their Estate. In either case, South Australian law sets out exactly how the Estate is to be distributed.

What happens if there's no executor?

Normally, a Will appoints an executor, someone trusted to manage the Estate, pay debts, and distribute assets according to the deceased's wishes. Without a Will, there's no executor in place, which can leave families unsure of who's responsible for what.

Thankfully, there's a clear process to follow. An eligible person can apply to the Supreme Court for a grant of Letters of Administration, a court order that gives someone (called the administrator) the legal authority to collect, manage, and distribute the Estate's assets.

Who can apply for Letters of Administration?

Generally, the person entitled to apply is whoever stands to inherit all or most of the Estate. In most cases, this is the deceased's spouse or domestic partner, or their children. It's also possible for two or more eligible people to apply together, jointly.

What's the difference between an administrator and an executor?

Both roles involve the same core responsibilities, paying the deceased's debts and distributing the remaining assets to the right people, within a reasonable timeframe. The main difference is simply how each person comes into the role: an executor is appointed under a Will, while an administrator is appointed by the Court when the deceased died without a valid Will or the executors nominated in the deceased’s Will are all unable or unwilling to act.

An administrator has additional reporting obligations, and must report to the Public Trustee, providing details of its management and administration of the Estate. 

How is an intestate Estate actually divided up?

This is often the question families want answered most, and understandably so.

Since 1 January 2025, intestacy in South Australia has been governed by the Succession Act 2023, which replaced the previous legislation. The general principles remain similar, but some of the figures and details have been updated.

Where the deceased has no children and is survived by a spouse or domestic partner, that spouse or partner is entitled to the whole of the Estate.

What if the deceased had children?

This is where things get a little more layered, and where the Succession Act 2023 made some important changes.

• If the Estate is valued at $120,000 or less, the surviving spouse or domestic partner is entitled to the whole Estate, along with the household furniture and personal effects. This figure increased from the previous $100,000 threshold under the old law.

• Where the Estate is worth more than $120,000, the surviving spouse or domestic partner receives the first $120,000 (plus household items and personal effects), and the remainder of the Estate is then split in half, one half to the spouse or partner, and the other half divided equally among the deceased's surviving children.

• If there's no surviving spouse or domestic partner, the children are entitled to share the whole Estate equally between them.

• It's worth noting that if a child entitled to a share of the Estate is a minor, a legal personal representative, or in some cases the Public Trustee, may need to manage that child's share on their behalf.

  
  

What if there's no spouse and no children?

The Succession Act 2023 also broadened who can inherit further down the family tree if there's no spouse, domestic partner, or children. It now extends to a wider group of relatives than the previous law did, including, step-children.

Why applying for Letters of Administration can feel overwhelming

Even once you understand the rules around distribution, actually applying for a grant of Letters of Administration involves its own set of requirements, paperwork, and ongoing duties as administrator of an Estate.

Getting it wrong, or missing a step, can delay the process significantly, which is the last thing most families want while they're already grieving. This is exactly the kind of situation where having an experienced solicitor guide you through the process can make a real difference, both in terms of getting it right the first time and reducing the stress involved.

The best way to avoid all of this? A valid, up to date Will

Here's the thing: everything above only applies when there's no valid Will in place. The simplest way to make sure your Estate is distributed exactly the way you want, to the people you want, by a person that you trust, is to have a properly prepared Will.

Life changes, relationships change, and your Will should reflect that. Taking the time now to put a clear, legally binding Will in place isn't just about your assets, it's about giving your family clarity and peace of mind during a time that will already be hard enough.

How CPC Lawyers can help

If you're dealing with an Estate where there's no Will, or you're not sure where you stand, we can guide you through the process of applying for Letters of Administration and help make sure everything is handled correctly from the start.

We also help individuals put effective Wills and Estate plans in place, so your family doesn't have to navigate these questions down the track.

Contact us for more information or to arrange a consultation:

Book A Consult here

Call: (08) 7325 0219

E-mail: info@cpclawyers.com.au