As there is no will to follow the estate is distributed in the order set out in Part 3A of the Administration and Probate Act 1919 (SA) known as the statutory order. No notice can be taken of any wishes of the deceased that are not expressed in a will. As with probate some assets can be handled without obtaining letters of administration but it is likely to be more difficult. The method of dividing an intestate estate under the Statutory Order is set out below.
If the deceased leaves a spouse or domestic partner (at the date of their death) and no children, the whole of the estate passes to the spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72G].
Who is a domestic partner?
A ‘domestic partner’ is is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of the deceased's death or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death [s 4].
A person may be declared to be a 'domestic partner' of another person under the Family Relationships Act 1975 (SA) if:
- The couple have been living in a ‘close personal relationship’ for a period of three years or, during a period of four years for periods totalling not less than three years, or
- If a child has been born to the couple
See Family Relationships Act 1975 (SA) s 11A.
What is a ‘close personal relationship’?
A ‘close personal relationship’ means a relationship of two adult persons (whether or not they are related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis. This does not include a legally married couple or a relationship where one of the persons provides care for a fee or reward [see Family Relationships Act 1975 (SA) s 11].
Declaration by the Court
A Court may make a declaration that two persons were domestic partners on a particular date. The Court must take into account all of the circumstances of the relationship, including any one or more of the following:
- The duration of the relationship
- The nature and extent of common residence
- The degree of financial dependence and interdependence or arrangements for financial support
- The ownership, use and acquisition of property
- The degree of mutual commitment to a shared life
- Any domestic partnership agreement made under the Domestic Partners Property Act 1996 (SA) or financial agreement made under the Family Law Act 1975 (Cth)
- The care and support of children
- The performance of household duties
- The reputation and public aspect of the relationship
See Family Relationships Act 1975 (SA) s 11B(3).
This legislation has application to the following matters affecting estates:
- The distribution of an intestate estate
- The person who may be entitled to take a grant of administration in the event that there is no will
- Rights to claim under the Inheritance (Family Provision) Act 1972 (SA)
- Rights to property claims under the Domestic Partners Property Act 1996 (SA)
- Superannuation (for South Australian Government public servants)
Where the deceased leaves a spouse* and domestic partner each is entitled to an equal share of the property, including any personal belongings of the deceased, that would have gone to a sole spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72H].
* Does not include a divorced spouse
If the deceased leaves a spouse or domestic partner and children the estate will be distributed, pursuant to section 72G of the Administration and Probate Act 1919 (SA), on the following basis:
Estates less than $100 000
The spouse or domestic partner will be entitled to:
- The whole estate, including personal belongings of the deceased (such as jewellry, household furniture, cars)
Estates more than $100 000
The spouse or domestic partner will be entitled to:
- Up to the sum of $100 000, and
- Half of the balance of the estate, plus
- The personal belongings of the deceased
The children of the deceased will subsequently be entitled to:
- The balance of the estate in equal shares
If the deceased and her/his spouse or domestic partner die within twenty eight days of each other it is taken that the spouse or domestic partner did not survive the deceased, and the estate is distributed as though there was no spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72E]. For discussion on adopted, illegitimate or step-children, see below - Children only.
Note: the value of an estate for the purposes of intestacy increased on 26 February 2009 from $10 000 to $100 000. The amount of $10 000 applies to deaths before this date.
Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, those children receive equal shares of the estate. Grandchildren (by a child who has died before the deceased) take their deceased parent's share divided equally amongst them. But if the dead child was childless, that dead child's share is divided amongst the deceased's other children.
See Administration and Probate Act 1919 (SA) s 72I.
A person who has been adopted by the deceased is treated in all respects as if she or he were a lawful child [see Adoption Act 1988 (SA) s 9]. A person who has been adopted cannot share in her or his birth parent's estate unless the adoption occurred after the death of the birth parent.
All children whether born within or outside a legal marriage or qualifying relationship (defined as a marriage-like relationship), are entitled to share in the intestate estate [see Family Relationships Act 1975 (SA) s 6]. A child born outside marriage or qualifying relationship, however, may need to apply to the court for a declaration if the deceased parent has never acknowledged paternity [ss 8, 9]. A step-child (who has not been adopted by the deceased) is not entitled to a share of the estate in the event of intestacy.
If a house is owned jointly by two people, and one dies, the house automatically belongs to the other. This cannot be changed by will. If an intestate person who owned a house in her or his sole name is survived by a spouse/domestic partner and children, and the spouse/domestic partner was living in the house at the time of the death, the spouse/domestic partner has the right to live in the house for three months and is also entitled to buy the house within the same time. In other words, as the value of the house will likely exceed $100 000, the surviving spouse/domestic partner must buy from the children their share in the house (that is, half of the balance divided amongst them) in order to continue to live in it. The three month period begins when the letters of administration are granted to the spouse/domestic partner. If someone else is the administrator the time begins when she or he gives proper notice to the spouse/domestic partner.
See Administration and Probate Act 1919 (SA) s 72L.
If the spouse/domestic partner cannot afford to buy out the children's share, she or he can apply to the court to postpone the sale of the house until the children have all turned 18. Another possibility would be for the spouse/domestic partner to make an application under the Inheritance (Family Provision) Act 1972 (SA) for a greater benefit.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.