What Happens When a Person Dies Without a Will?

Leslie Taylor

When a person dies without a will, they are said to have died “intestate” and their estate is to be distributed pursuant to Part 3 of the Wills and Succession Act, SA 2010, c W-12.2:

If the Person Dies With a Surviving Spouse/Partner

1. If a person dies leaving a surviving spouse/partner but no children, the entirety of their estate goes to the surviving spouse/partner.
2. If a person dies leaving a surviving spouse/partner and at least one child:
   1. The entirety of the estate goes to the surviving spouse/partner if all the deceased’s children are also the children of the surviving spouse/partner; or
   2. If any of the deceased’s children are not children of the surviving spouse/partner, the surviving spouse/partner is entitled to 50% of the net value of the estate (or the prescribed amount, which ever is greater) and the remainder is to be distributed among the deceased’s children.

If the Person Dies Without a Surviving Spouse/Partner

3. If a person dies without a surviving spouse/partner but with at least one child, the entirety of the estate is to be divided into as many shares as there are surviving children and deceased children who left surviving children (i.e. grandchildren of the deceased), with each surviving child receiving one share and the share of each deceased child to be divided among the deceased’s child’s children (i.e. the grandchildren).
4. If a person dies without a surviving spouse/partner and without children:
   1. 1. The estate goes to the parents of the deceased individual in equal shares; or
      2. If no surviving parents, then the estate goes to the children of the deceased’s parents (i.e. the siblings of the deceased); or
      3. If no surviving parents or siblings, but there is one or more grandparent or children of a grandparent (i.e. aunt/uncle of the deceased):
         1. 50% of the estate goes to surviving grandparents on one parent’s side, in equal shares, or if no surviving grandparents on that side, to the children of the grandparents (i.e. aunts/uncles) on that side; and
         2. 50% of the estate to the surviving grandparents on the other parent’s side, in equal shares, or if no surviving grandparents on that side, to the children of the grandparents (I.e. aunts/uncles) on that side; or
      4. If no surviving parents, siblings, grandparents or aunts/uncles, then as above at paragraph 4(c) in respect of great-grandparents and children of great-grandparents (i.e. great-aunts/great-uncles of the deceased).

5. If there is no individual entitled to receive pursuant to Part 3 of the Wills and Succession Act, then the Unclaimed Personal Property and Vested Property Act, SA 2007, c U-1.5 applies to the intestate estate.

Note: Additional guidelines exist for distribution of an intestate estate for the following circumstances:

1. A person dies leaving both a surviving spouse and a surviving partner.
2. Where the deceased individual and the surviving spouse had been living separate and apart for more than 2 years at the time of the deceased’s death or executed a declaration of irreconcilability.