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Tuesday, 25 October 2011 19:27

What happens if you die without making a will in South Australia?

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The assets of a person who does not leave a will are distributed according to the law.  In South Australia, the following distributions apply to surviving members of the family according to Section 72 of the Administration and Probate Act 1919.

Intestacy is the legal term that refers to someone who dies without a legal will.

We have highlighted 3 of the most common situations that people may find themselves in when dealing with Intestacy and what the law stipulates about the distribution of assets owned by the deceased.

 

1.    Surviving Spouse but no children

 

All assets are distributed to the spouse or domestic partner.

A husband or wife is a lawful spouse.  A person may be determined by Court to be a domestic partner if he or she has been living in a close relationship for three years (or has a child from the relationship)

 

2.    Surviving Spouse and Children

 

If the total estate is less than $100,000, the whole estate passes to the surviving spouse or domestic partner.

If the total estate is more than $100,000, the spouse or domestic partner is entitled to the following:

 

a)    Personal Property (including furniture, effects and car)

b)    $100,000 and half the remaining balance

c)    Where the family home is in the sole name of the deceased, the surviving spouse has the right to purchase the home

 

Children are entitled to the balanced of the estate.  The share of any child under the age of majority (ie under 18 years) must be given to the Public Trustee to manage under trust.

For example a person dies without a will and is survived by a spouse and 2 children.  The assets comprise of a family home worth $400,000 owned by the deceased solely, $50,000 in investments as well as a motor vehicle and personal effects.

The distribution would be:

1)    To the spouse – motor vehicle and personal effects $275,000 (comprising $100,000 plus half the balance which is $175,000)

2)    To the children - $175,000 divided equally between them

On paper this sounds benign, but let’s examine this situation in more detail.  The key question here is how would the children’s share of the estate be funded?  They could receive the term deposit, but then would the house have to be sold in order to provide funds for the children.

The surviving spouse has the right to purchase the house, but how would that be funded.  The surviving spouse may not be employed and therefore potentially unable to secure a loan.

The death of a spouse without a will can result in the surviving spouse having to sell the family home to pay the children’s entitlements under intestacy laws.

 

  1. Surviving Children only – no spouse

 

Distribution is in equal shares to the children (if a child has died and has had children, then those children take their parent’s share in equal proportion)

What about assets in joint names?

Joint Tenants

When property is owned as joint tenants, it generally passes automatically to the survivor upon the death of the other joint owner.  As a result, joint property does not form part of a person’s estate.  It cannot be disposed of by a Will or under intestacy laws.

Tenants in Common

When property is owned as tenants in common, the deceased person’s share of the property does not automatically pass to the surviving owner.  The deceased’s share of the property is distributed according to the terms of his or her Will.  If there is no Will, the deceased person’s share of the property is distributed according to the intestacy laws.

 

Note: Advice contained in this article is general in nature and does not consider your personal situation or needs. Please do not act on this advice until its appropriateness has been determined by a qualified adviser.  While the taxation implications of this strategy have been considered, we are not, nor do we purport to be registered tax agents. We strongly recommend you seek detailed tax advice from an appropriately qualified tax agent before proceeding.  The information provided is current as at October 2011.

 

Read 8297 times Last modified on Tuesday, 25 October 2011 19:27

1 comment

  • Comment Link Lia Tuesday, 21 August 2012 02:29 posted by Lia

    Laws vary from one country to atenhor, but this may be of help.If someone dies intestate (without a will) in England, then all of his estate passes to his next of kin. If he was married, then his property instantly becomes the property of his widow. Therefore she would be entitled to sell and does not have to inform you. However, if you were a "financially dependent" child, which normally would mean you are aged under 18, you may have grounds to claim some of his estate, even you hadn't seen him in a long time, or even if he made a will and excluded you.Any information regarding wills are public documents anyone can look at. Information relating to property sales are public information kept at the Land Registry. If you don't know how to access this information, ask for free advice at the CAB or contact a solicitor (you will have to do this if you intend to act to claim from the estate, as the CAB only advise, they don't do legal representation).Personally, I would let it go. If he wanted you to have anything he would have willed it to you. Failure to do so suggests he was happy to give it all to his next of kin. Make your own money, buy your own house, and have yourself to thank for it.

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