Disclaimer: Probate Consultants is not a legal practice. Information on this website about the law on any subject is general in nature and is intended to provide an outline only. It is not comprehensive, nor does it constitute legal or financial advice.
When someone passes away without a Will in South Australia, they have died intestate. This means that their estate is distributed according to the laws of intestacy which can be found in Part 3A of the Administration and Probate Act 1919. Entitlements to an intestate estate are based on the deceased’s relationships at the time of their passing.
Executors are in charge of administering an estate when there is a Will. This may involve Probate. Where the deceased did not leave a Will, their closest Next-of-Kin is entitled to access, manage and distribute their assets whilst also dealing with their affairs more generally. This process often involves applying for Letters of Administration (LOA).
What happens to your estate when you die without a Will in SA?
Your estate consists of the assets you own and the liabilities (debts) you have incurred. Most people leave a Will which appoints an executor and provides instructions for how the estate is to be administered. When you die without a Will in South Australia, the law dictates who is entitled to your estate and who is authorised to administer it. Usually, your senior (closest living) Next-of-Kin will be responsible for dealing with your estate unless they opt out.
Dying without a Will in South Australia – Who is entitled to your estate?
If you die without a Will in SA, Part 3A of the Administration and Probate Act 1919 outlines who is entitled to your estate. Entitlements are based on a hierarchy of relationships.
Simple Scenarios
Where the deceased leaves a spouse or domestic partner but no children, the spouse/partner is entitled to the whole estate.
Where the deceased did not leave a spouse or partner, their estate is distributed according to the following hierarchy:
The hierarchy operates so that persons at each level of relationship with the deceased are entitled to the whole estate in equal shares. If there is no-one with that relationship, the entitlement moves down to the next tier in the hierarchy. If there are no living relatives the estate passes to the government of South Australia.
Complex Scenarios
Where the deceased leaves a spouse or partner and children, their estate is distributed as below:
The spouse / partner takes:
The children are entitled to the other half of the balance of the estate in equal shares.
Notes:
- If the estate value is less than the Prescribed Amount of $100K the spouse/partner takes the whole estate.
- If the deceased leaves a spouse and a partner, they share the entitlements of the spouse equally
- Where a spouse/partner resides in a property that was owned by the deceased they can elect to acquire that property (or relevant interest) and pay the estate the value of the property as at the date of death (See Section 72L).
Grant of Letters of Administration in SA – What is it?
A Grant of Letters of Administration in South Australia is a legal document issued by the Supreme Court that certifies:
- The named person has died (the deceased).
- The deceased died without a Will.
- The appointed Administrator is authorised to administer the deceased’s estate.
- The Administrator is usually the deceased’s senior Next-of-Kin.
A useful analogy is that a Grant of Letters of Administration is like the key to a deceased person’s estate where they have died intestate. It allows the Administrator to access, manage and distribute their assets according to the laws of intestacy. This important legal document proves to asset holders and institutions like the ATO that the Administrator has the authority to finalise the affairs of the deceased.
Letters of Administration in SA – Who has the right to apply?
Rule 34 of the Supreme Court of South Australia Probate Rules (2015) stipulates that persons entitled to a intestate estate can apply for a Grant of Letters of Administration in the following order of priority:
- Spouse or domestic partner (where they have survived the deceased for 28 days)
- Children (or grandchildren where a child predeceased)
- Parents
- Siblings (or their children where they predeceased)
- Grandparents
- Aunts and Uncles (or their children where they predeceased)
Applying for Letters of Administration in SA – What are the options?
You can apply for Letters of Administration in South Australia by either:
- Preparing the application yourself.
- Engage Probate Consultants to assist with your application.
- Instructing a lawyer to act on your behalf.
- Authorising the Public Trustee or a Trustee Company to act as the Administrator.
Choosing how to apply for Letters of Administration in SA is a crucial decision. It will not only affect the costs involved, but also the length of time it takes to obtain the Grant and the experience you have throughout the process.
The right solution is different for everyone. It is important to assess your needs, budget, resources (time + knowledge) and customer service expectations. Once you know what you want from the application process, it is easier to decide what pathway will provide the best outcome for you and your family.
Costs and Fees to obtain Letters of Administration in South Australia – What are they?
The costs and fees involved in applying for Letters of Administration in SA depend on:
- The value of assets in the estate
- How you choose to apply:
- Yourself as a self-represented applicant (SRA)
- SRA supported by Probate Consultants
- Probate Solicitors
Supreme Court Filing Fee:
The Supreme Court of SA charges a Filing Fee for all Letters of Administration applications. This is a mandatory cost, and the same fee applies whether you choose to do the application yourself, use a lawyer or engage Probate Consultants.
The Filing Fee payable for an application is determined by the total value of assets in the estate. See Filing Fee tiers below:
| Filing Fee | Gross Value of Assets in the Estate |
|---|---|
| $929 | $200,000 or less |
| $1,858 | More than $200,000 but less than (or equal to) $500,000 |
| $2,475 | More than $500,000 but less than (or equal to) $1,000,000 |
| $3,715 | More than $1,000,000 |
Professional Costs
If you require assistance with your Letters of Administration application in SA, you will pay professional fees in addition to the Filing Fee outlined above. Every service provider charges different fees and the variance between these costs can be substantial.
There are two main ways to get assistance with your application:
- Lawyers
- Probate Consultants
Grant of Letters of Administration – When is it required in SA?
Applying for Letters of Administration is not a mandatory requirement in South Australia. A Grant is only required if an asset holder (Bank, Aged Care facility, Share Registry) or other institution (ATO, Centrelink) requests proof of your legal authority to deal with the estate of a family member who died without a Will. It all depends upon the type of assets, their value and the policies of the institutions holding or managing them.
You need a Grant of Letters of Administration in South Australia in the following situations:
Letters of Administration is also necessary to perform other duties in relation to finalising a deceased person’s estate, including making contact with the ATO regarding tax returns or dealing with liabilities such as mortgages.
If you require assistance in determining whether Letters of Administration is required to deal with an intestate estate you can:
- Contact the relevant institutions and ask whether they require a Grant for you to access and take control of the assets.
- Book a Free Consultation with Probate Consultants
Obtaining a Grant of Letters of Administration in South Australia – How long does the process take?
With Probate Consultants, most self-represented applicants in SA get a Grant of Letters of Administration in just 28 days.
Application Timeline
Note: Complex applications can take longer depending on the Court’s requisitions (questions).