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Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. In South Australia, the applicable laws are the Administration and Probate Act 1919 and the Supreme Court Civil Rules 2006 (SA). This kit will state the law as it applies in South Australia. If the deceased was domiciled in South Australia and the assets are in South Australia then the law of South Australia will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of South Australia. A grant of Letters of Administration will generally be issued by the Court within 1 week of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 1-2 weeks.

When does intestacy occur?

When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate. This kit is aimed at the situation where the deceased dies without having made a will.

The distribution of an intestate estate

State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.

The role of the administrator

On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below. The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate. The duties of the administrator are explored in more detail in Document 2.

The purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. Government statistics reveal that some 6 -8% of the matters dealt with by the probate registry of the Supreme Court of South Australia involve applications made in circumstances of intestacy. The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances. The rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.

An explanation of the rules of intestacy

Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In South Australia, the rules are set out in Sections 72A – 72O of the Administration and Probate Act 1919. Please note, references to the deceased’s partner include both a lawful spouse and a putative spouse as explained above.

1. If there are no children but a surviving lawful spouse OR putative spouse, then the whole of the estate will pass to the lawful spouse or the de facto.

2. If the deceased had children and a surviving spouse, the spouse would receive the personal chattels (meaning furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes);


If the estate is valued less than $100,000, the spouse will get the remainder of the estate. If the estate is valued at over $100,000, the spouse will get $100,000 plus one half of the balance. The remaining half will be divided between the children, or in the event of their death, their share will be divided amongst their children.

3. If the deceased had children and a putative spouse, and if the putative spouse had lived with the deceased continuously for over 5 years, the putative spouse would inherit in the same way as a lawful spouse as above. If the domestic relationship was under 5 years, the children would inherit but if the children were the children both of the deceased and the putative spouse then the domestic partner would inherit the first $100,000 and one half of the remainder of the estate as in example B above.

4. If the deceased left children, a spouse AND a domestic partner, then the partner’s share (meaning the first $100,000 plus one half of the reminder of the estate) would be divided between the lawful spouse and putative spouse.

5. If the deceased left children but no surviving spouse or domestic partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).

6. If the deceased left no children, spouse or domestic partner, family members would inherit in the following order:

  • Parents (if only one surviving parent, that parent would inherit the entire estate)
  • brothers and sisters (either whole or half blood)
  • Nephews and nieces
  • grandparents

If none of the above exist, then the estate will pass to the Crown.

Please note: If the deceased had made any gift of an asset to his or her child (ren) whilst still alive, then this must be taken into account when determining the shares the child (ren) in the distribution of the estate.

Can I apply for Letters of Administration myself?

Yes. AussieLegal offers a number of legal kits that are specifically designed to help family members make a personal application and save thousands in legal fees:

Letters of Administration Plus $1,250.00

Independent solicitors and paralegals will do all the hard work and prepare all the statutory forms and affidavits to enable you to make the application directly to the Supreme Court.

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