What happens if you die without a valid will?

Losing a loved one is devastating. At a time when your family are most vulnerable, the best thing you can do for your family is ensure your affairs are in order by organising a valid will. But what if you don’t? We explain how your wealth will be divided if you died tomorrow without leaving a valid will.

South Australia

In South Australia, when you die without a will, you are “intestate”. Depending on the value of the wealth and type of assets you owned, your family may be required to obtain a Grant of Letters of Administration from the Probate Registry of the Supreme Court at significant expense and delay to enable them to distribute your wealth and finalise your affairs.

Whilst the laws in Australia vary from state to state, generally, your assets will be distributed according to a “statutory order” or priority chain. Often a spouse receives the highest priority, followed by children, parents, grandparents, aunties or uncles and cousins.

Here are a few examples of how things may play out for you and your family, if you died without a will tomorrow.

Leaving Spouse or Domestic Partner Only

If you die in South Australia with a spouse or domestic partner and no children, the whole of your wealth will pass to your spouse. This is the case, even if you have been separated from your ex-partner for several years but aren’t yet divorced. Yes, read that sentence again because it is important. Your ex-partner could receive the benefit of all of your wealth if you have no will and are not yet divorced.

A Will is so much more than a document stating who will receive your assets and belongings after you die. It’s a valuable form of personal security that protects those nearest and dearest to you.
– Ebony Cunningham, Bersee Legal

If you are in a de facto relationship, this does not mean that you are automatically deemed to be a domestic partner. A domestic partnership can be a registered relationship under the Relationships Register Act 2016 (SA). More commonly, when you die intestate your de facto partner will need to apply to the relevant court to be declared to have been your domestic partner. To do this, they must establish that they were in a close personal relationship with you, the deceased and:

  1. This was for a period of three years, or during a period of four years for periods totaling not less than three years, or a child has been born of the relationship; or,
  2. The interests of justice require that such a declaration be made.

Imagine, at a time when your loved one is grieving your loss, putting them through the process of having to prove the genuine nature of your relationship by swearing an Affidavit detailing the nitty gritty of your life together.

For more information about what is required to obtain a declaration that you were a domestic partner of your deceased de facto, please contact our office.

Leaving a Spouse and Domestic Partner but No Children

This is where things can get complicated.

As outlined above, if you die without a will and having separated but not divorced from your ex-spouse, they are entitled to 100% of your wealth. If you have subsequently entered a new de facto relationship – both your ex-spouse and current partner could be entitled to split your wealth equally. This includes your personal belongings. You may not have wanted your wealth to go to an ex-spouse at all. You may have wanted your new partner to receive 100% of your wealth, or for some of it to go to other family members.

This is why it is important that if you are newly separated, you organise to update or create a will as a matter of urgency to protect your assets despite your changing circumstances.

Leaving a Spouse or Domestic Partner and Children

If your wealth is worth less than $100,000:

Then the whole of your wealth will be given to your spouse or domestic partner. This includes your personal belongings and items of sentimental value. The legislation does not automatically provide anything for your children, when your estate is valued at less than $100,000.

As our society evolves, blended families are becoming increasingly popular where you or your partner may have children from previous relationships. Our experience is that if you are living in a blended family, you may want to gift some of your wealth to your new spouse/partner but also preserve some legacy for your children – perhaps funds to help with their education, buy a car or save for a house deposit. If you died without a will and your wealth is worth less than $100,000, you run the very real risk of your children missing out on receiving anything at all.

If your wealth is worth more than $100,000:

Then your spouse or domestic partner will be entitled to:

  • Up to the sum of $100,000;
  • Half of the balance of the rest of the wealth; and,
  • Your personal belongings.

Your children will then share what is left over in equal shares.

Leaving Only Children

If you die leaving only a child or children, then your wealth will be divided between then equally. If one of your children dies before you, but also had their own children (your grandchildren) then those grandchildren shall receive the share their deceased parent would have received had they been alive at the date of your death. Generally, it does not matter if your children are born outside a marriage or domestic partnership.

Inheritance Claim

Members of your family may decide to lodge an application in court to challenge the distribution of your wealth under the intestacy legislation, asking that they receive a larger share than the law otherwise provides. For example, your children may make this sort of application, if the legislation provided that everything be left to your second husband or wife. Where this occurs, legal fees can be ordered to be paid from your wealth – reducing the monies and assets available for division between your loved ones.

This process can be tedious and slow.

At a time when your family is vulnerable and grieving, imagine your current spouse or children having to go to the added stress and expense  of applying to the Court to receive monies, that you wanted them to receive and could have left them in a valid will – costing you a few hundred dollars to organise.

Take control and give yourself piece of mind.

Organising a will is simple, and less expensive than you think. For information about Bersee Legal’s pricing click here. A Will is so much more than a document stating who will receive your assets and belongings after you die. It’s a valuable form of personal security that protects those nearest and dearest to you.

You can also save yourself time and start the process of instructing us to prepare will/s for you online here. Our online system allows you to enter all of the relevant information in your own time from the comfort of home – giving you time to carefully consider your wishes and ensuring you don’t need repeated appointments with us to sort everything out.

If you would like to discuss organising a will, or estate planning strategies more broadly, contact Bersee Legal today for an in person consultation.

Ebony Cunningham – Senior Associate

Ebony graduated with Honours in a Bachelor of Law and Legal Practice and a Bachelor of Behavioural Science (Psychology) in 2011.

Ebony specialises in the areas of family law, criminal law and civil litigation. Ebony is a member of the complex criminal panel and the family law general panel for the Legal Services Commission of South Australia.

Contact: ebony@bersee.com.au
(08) 8725 6969

Legal Secretary: Ms Lauren Lewis
Contact: lauren@bersee.com.au