Dying without a will: what really happens to your estate

By Rebekah Griffith and Kerri Thomas

Death does not always give notice. If you die “intestate” (i.e. without a valid will) decisions about your assets, executor, superannuation, funeral and burial are handed to a statutory formula, a bank’s risk policy, or, at worst, a Supreme Court dispute. Here are the questions clients most often ask about what happens without one.

Do I actually need a will?

No. The Succession Act 2023 (SA) already sets out what happens to your estate if you never make one. But that fixed formula cannot reflect your actual wishes, and, as below, it can create confusion, delay and conflict for those you leave behind. Making a will, and keeping it current, is worth the effort.

Who gets my assets?

Under the Succession Act 2023 (SA), a fixed order applies regardless of your wishes. Broadly: if a spouse and children survive you, your spouse receives the household items, the first $120,000, and half of what remains, with your children sharing the other half equally. If only children survive you, they inherit everything equally. If none of these survive you, your estate passes to your grandchildren, parents, then siblings, then grandparents, then aunts and uncles, with your relative’s children taking their share. Anyone under 18 does not receive their inheritance until they turn 18. None of this accounts for an unadopted stepchild, an unregistered partner, a favourite charity, or a relative you would rather did not benefit. A will lets you decide; intestacy does not.

Who will be my executor?

As an executor would not have been appointed in your Will, someone must apply to the Supreme Court for “Letters of Administration” and become your estate’s administrator, generally in the same order of priority as above. Where two or more people share equal priority, they must apply jointly or with the others’ consent, and disagreement can stall the estate for months. The Court can pass over an unsuitable applicant, administrators face clear statutory duties, and beneficiaries can seek compensation if those are not met. None of this uncertainty exists if you name your own executor, being someone you trust, or, failing that, a professional such as your accountant, solicitor, or the Public Trustee.

Who gets my superannuation?

Super is not automatically covered by a will. It does not form part of your estate unless you direct it there. With a valid, up-to-date binding death benefit nomination, the trustee must pay as you have directed so check yours still reflects your wishes, especially after a separation, new relationship, or new children. Without one, the trustee has discretion, generally favouring a dependant such as a spouse or child, or otherwise your estate, a slower process that can breed real conflict.

How will my funeral be paid for?

Funeral costs land well before any grant of probate. Where a will exists, banks will typically release estate funds on production of the death certificate and will, sparing the family from paying upfront. Without a will, banks are far more cautious until an administrator is appointed which, as above, can itself be delayed by disagreement over who should apply.

What happens to my body?

A body may only be buried or cremated, and the law prefers burial. Under the Burial and Cremation Act 2013 (SA), it is an offence, carrying a $10,000 penalty, to cremate a body against the objection of the deceased’s executor, or a parent or child, unless the will directed cremation. In the recent case of Maros v Luca & Ors, the deceased’s wills said nothing of her funeral wishes, leaving her husband and son in dispute. The husband wanted cremation, as the couple had long planned; their son argued for burial and objected as her child. The Court permitted cremation, persuaded by the trust she had placed in her husband, but noted that recording her wishes in her will would have avoided the dispute entirely.

The common thread

A valid, current will lets you choose who receives your assets rather than a formula deciding for you; hand the executor’s job to someone you trust; make sure your superannuation reaches who you intend; let your funeral be paid promptly; and record your wishes for burial or cremation, sparing your family the cost, delay and heartbreak of resolving it themselves. If you don’t have a will, or have not reviewed yours in years, now is a good time to make an appointment.

This article is general information only, current as at September 2026, and does not take into account your personal circumstances. 

Originally publishing in The Islander, 04/09/2026; https://theislanderonline.com.au/news/2026/09/04/dying-without-a-will-what-really-happens-to-your-estate/