Very few people decide to die without a will. They meant to get around to it; or they had one drawn up years ago and never signed it; or they assumed that everything would simply pass to their partner in any event.
What actually happens is more mechanical than that. Dying without a valid will is called dying intestate, and South Australia then applies a formula set out in the Succession Act 2023 (SA) — the legislation that replaced our old succession laws on 1 January 2025. The formula decides who receives what, in what shares, regardless of what you would have wanted, what you promised someone, or what your family agrees would be fair.
Below is what the formula actually says, the assets it does not touch, and the two situations where it causes the most damage: blended families, and partners who never married.
First: not everything you own forms part of your estate
Before the formula applies to anything, you have to work out what is in the estate at all. Several of the largest assets people own usually sit outside it:
- Superannuation is not automatically an estate asset. It is held by your fund's trustee, and where it goes depends on your death benefit nomination — a binding nomination, a non-binding one, a reversionary pension, or no nomination at all, in which case the trustee decides. Superannuation often includes life insurance, which makes it one of the largest sums in play.
- Property held as joint tenants passes automatically to the surviving owner by survivorship. It never enters the estate. Property held as tenants in common does, which is why the way a title is held matters enormously.
- Life insurance held outside super with a nominated beneficiary is paid to that person directly.
- Assets held in a family trust or a company are not yours to leave; what passes is control of the structure, which is a separate question again.
This cuts both ways. It means a surviving partner may be far better provided for than the intestacy formula alone suggests — or far worse, if the super nomination lapsed and the house was held as tenants in common.
The formula
Where there is a spouse or domestic partner and children, the survivor first receives a fixed sum known as the preferential (or statutory) legacy. For deaths on or after 1 January 2025 that figure is $120,000, increased from the $100,000 that applied under the old legislation. The rest is then divided according to who survives you:
| Who survives you | Who receives the estate |
|---|---|
| Spouse or domestic partner, no children | The whole estate |
| Spouse or partner and children, estate worth $120,000 or less | The whole estate to the spouse or partner |
| Spouse or partner and children, estate worth more than $120,000 | To the spouse or partner: personal effects and household goods, the first $120,000, and half of what remains. To the children: the other half, in equal shares |
| Both a spouse and a domestic partner | Shared equally between them, unless the Supreme Court orders a different division |
| Children but no spouse or partner | Equally between the children; a child who died before you is represented by their own children |
| No spouse, partner or children | Parents; then brothers and sisters; then grandparents; then aunts and uncles; then their children — each class only if no one in the class above survives |
| No surviving relative in any of those classes | The Crown |
A surviving spouse or domestic partner also has a limited right to elect to take the family home as part of their entitlement, exercisable within three months. It is a useful protection, but it is not a free pass: if the home is worth more than their share of the estate, they generally have to fund the difference.
The blended-family squeeze
This is where the formula does its quietest damage. Take a common Adelaide situation: a second marriage, a home worth $900,000 held in one name only, and two adult children from a first marriage.
If the owner dies without a will, the surviving spouse receives $120,000 plus half of the remaining $780,000 — $510,000 in total. The two children share the other $390,000, or $195,000 each.
Nobody in that example has done anything wrong. The children are entitled to their shares and will usually want them. But the only substantial asset is a house, and the surviving spouse cannot pay out $390,000 without either selling it or borrowing against it — at exactly the moment they are least able to absorb a move. A will could have given that spouse a right to remain in the home for life, with the capital passing to the children afterwards. The formula has no way to express that idea.
If you are not married, your partner is not automatically anything
The Act recognises a domestic partner, but not simply because you lived together. A partner qualifies if the relationship was registered under the Relationships Register Act 2016 (SA), or if they are declared to have been your domestic partner under the Family Relationships Act 1975 (SA) — broadly, where you lived together continuously for three years, or for periods totalling three years out of the previous four, or had a child together.
The practical consequence is the part people miss. Without a registered relationship, that declaration is a separate court application, made by a grieving partner, requiring evidence about a private relationship, and it happens before the estate can be dealt with. It adds cost, delay, and — if another family member disputes it — genuine conflict.
Two related traps are worth stating plainly:
- Separation is not divorce. If you have separated but never divorced, your legal spouse remains your spouse for intestacy purposes, and may share in your estate alongside a new partner.
- Stepchildren you never adopted receive nothing under the formula, no matter how long you raised them. Nor do friends, carers, charities, or a sibling you meant to look after.
Someone still has to be appointed to administer the estate
With no will there is no executor, so nobody has authority to deal with the estate until the Supreme Court appoints an administrator by granting letters of administration. Priority broadly follows the entitlement order — the surviving spouse or domestic partner first, then children, then parents, then siblings — and the application is lodged electronically through CourtSA with an administrator's oath, a full statement of assets and liabilities, and identity verification.
Small holdings can sometimes avoid that. The Succession Act allows an institution holding personal property worth up to $15,000 to release it to a surviving spouse, partner or child without a grant. Beyond that threshold, banks, share registries and Land Services SA will want to see the grant before anything moves. We have set out how the process works in more detail in our guide to probate in South Australia, and what the role involves in our guide for executors.
Two further points matter where children are young. Intestacy gives you no way to appoint a guardian, so who raises your children may end up being decided by a court. And a minor's share is held on trust until they turn 18, at which point it is paid out in full — with no ability to stagger it, protect it, or attach any conditions.
Dying intestate does not stop a claim being made
Family provision claims are still available against an intestate estate. Eligible family members — spouses, domestic partners, former partners, children, and in defined circumstances stepchildren, grandchildren, parents and siblings — can apply to the Court for greater provision, generally within six months of the grant.
There is an irony here worth noting. The Succession Act now requires the Court to give real weight to the deceased's wishes and reasons. Where there is no will, there is no record of those wishes at all — so the one factor that might have protected the estate from a claim simply does not exist.
What a will does that the formula cannot
- Choose who is in charge. An executor you selected, rather than whoever is first in line and willing to apply.
- Balance a partner against children from an earlier relationship — a right to reside, a life interest, or a staged distribution instead of an immediate split.
- Appoint guardians for children who are still minors.
- Use testamentary trusts where a beneficiary is young, vulnerable, in a difficult marriage, in business, or receiving a pension.
- Provide for people the formula ignores — stepchildren, a carer, a friend, a charity.
- Deal with specific things specifically: the business, the shack, the jewellery, the family photographs.
- Line up superannuation and insurance with the rest of the plan, rather than leaving them to a lapsed nomination.
- Record your reasons, which is now one of the more useful defences against a later claim.
Our note on five things your will must do covers what a properly drawn will should achieve beyond simply naming beneficiaries.
If you already have a will, it may not be doing what you think
An out-of-date will can produce a partial intestacy — where part of the estate passes under the will and the rest falls back to the formula. That happens when a beneficiary dies first, when a specific gift no longer exists, or when the will simply never dealt with the residue.
Two events change things automatically. Marrying, or registering a relationship, revokes an earlier will unless it was made in contemplation of that marriage or relationship. Divorce, or revoking a registered relationship, cancels gifts to the former partner and their appointment as executor. Buying a property, starting a business, separating, or a death in the family are all worth a review — as is knowing where the signed original is kept, since a copy is not the same thing. We have written separately on why it pays to have a lawyer prepare a will, power of attorney and advance care directive.
How Zed Legal can help
Zed Legal prepares wills, powers of attorney and advance care directives for clients across South Australia at a fixed, quoted fee, and we act for executors and administrators through the whole of an estate — including where there is no will and letters of administration are needed.
If someone in your family has died without a will, the sooner the position is mapped out the fewer irreversible steps get taken. If it is your own will that has been on the list for a while, it is usually a short conversation and a shorter document than people expect.
Call (08) 8166 7569 or email hello@zed.legal. We reply within one business day, and the first conversation is obligation-free.
This article is general information only and is current as at August 2026. It is not legal advice and does not take your circumstances into account. Entitlements, thresholds and procedures under the Succession Act 2023 (SA) may change. Please obtain advice specific to your situation.