If someone dies without a valid will in South Australia, a fixed statutory formula decides who inherits.
Australia does not have one set of intestacy rules — it has eight, and they produce genuinely different outcomes for identical families. This page covers what South Australia does. For the parts that are the same everywhere — why stepchildren miss out, how de facto status is proven, what happens with no living relatives — see what happens if you die without a will in Australia.
Where a South Australia estate has to be divided between a surviving partner and children, the partner does not simply take half. They first receive a fixed sum — the preferential legacy — and only the balance is shared.
In South Australia that sum is $120,000, set by section 105 for the amount set when the Succession Act 2023 commenced. It is indexed after the Act commenced, so the current figure may be higher.
In South Australia the preferential legacy applies where you leave a spouse or domestic partner and children.
That condition matters more than the dollar amount, and it is where the states diverge most sharply. The trigger is not a variation on a theme — it is a different rule:
This is why "my spouse will get everything" is true in some states and false in others, for the same family. In South Australia, the partner does take everything where all the children are also theirs.
Because the legacy is a fixed sum rather than a percentage, its real effect depends entirely on the size of the estate relative to that figure. On a $120,000 threshold, an estate below it passes substantially or wholly to the partner. An estate well above it is meaningfully divided.
For most Australian families the largest asset is the home, and this is where it bites: if the children's statutory share cannot be paid out of cash, the house may have to be sold to fund it — sometimes the house the surviving partner is living in. A will avoids that entirely, because you decide.
South Australia replaced three separate laws on 1 January 2025. The Succession Act 2023 (SA) repealed the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972. Older guides that still cite the Wills Act 1936 are out of date.
Practically, this means you should treat almost any SA inheritance article written before 2025 as unreliable, and be sceptical of newer ones that do not name the current Act. Read the official summary of the changes.
Under Part 6 of the Succession Act 2023 (SA), the estate passes to the first category with a living member:
The exact fractions are technical and depend on the family's shape. The national intestacy guide explains the traps that catch every state — stepchildren, separated spouses, competing partners, proving a de facto relationship.
South Australia charges on a sliding scale based on the value of the estate, so a larger estate pays a higher filing fee. Fees are generally reviewed on 1 July each year.
South Australia uses a tiered scale, so the filing fee rises with the value of the estate. Smaller estates fall into a low or nil band, which is a genuine advantage over the flat-fee jurisdictions — Queensland, Western Australia and the Northern Territory charge the same fee regardless of size, so a small estate there pays the full amount. The trade-off is at the other end: a large estate in a tiered jurisdiction can pay many thousands of dollars where a flat-fee state would charge a few hundred.
An important point about a nil band: it waives the fee, not the requirement. The family still has to apply for a grant, still has to prepare the paperwork, and still waits. Free is not the same as unnecessary.
Figures are as at FY2026-27, and most jurisdictions re-index on 1 July, so check the current SA schedule before relying on one. These are court fees only — they exclude solicitor costs, and they exclude trustee company commissions, which are charged as a percentage of the estate and dwarf the filing fee on any substantial intestacy.
There is a second cost that never appears on a fee schedule: with no will there is no executor. A relative must apply to the Supreme Court of South Australia for letters of administration, which is slower than a grant of probate and usually needs the consent of others with an equal or better right to apply. Until that grant issues, banks and land registries will release nothing. The mortgage, meanwhile, keeps falling due.
Intestacy produces exactly the conditions that lead to a family provision claim: someone the statutory formula ignores entirely, such as a stepchild or a long-term partner whose relationship is disputed, and no document recording what the deceased actually wanted.
In South Australia, such a claim must be brought within 6 months of the grant of probate, under section 118 of the Succession Act 2023 (SA).
Section 118 requires an application to be made within 6 months after the grant of probate or administration. Note that this is now found in the Succession Act 2023 — the old Inheritance (Family Provision) Act 1972 was repealed on 1 January 2025, so older guides cite the wrong Act.
Note carefully when the clock starts, because it is not the same across Australia and it is the detail that catches administrators out. New South Wales and Queensland run the period from the date of death. The other six jurisdictions run it from the grant of probate or administration. That distinction is worth months: an intestate estate can take a long time to reach a grant, and in a grant-based jurisdiction none of that delay eats into the claim period. In a death-based jurisdiction, it all does.
For an administrator this is the single most dangerous date in the process. Distribute the estate before the window closes and you may be personally exposed if a claim succeeds afterwards.
Everything above is a default that applies because nobody left instructions. A valid will overrides the statutory formula, names an executor so no one has to apply for administration, and lets you provide for the people Part 6 of the Succession Act 2023 (SA) does not recognise.
Before you make one, check the witnessing requirements in SA — because a will that fails on execution puts your family straight back into this page.
Often, yes — in South Australia a surviving partner generally takes the whole estate where all the children are also that partner's children. Children from an earlier relationship change the result, and that is when the preferential legacy comes into play.
The first $120,000 under section 105, plus personal effects, before the balance is divided. That is indexed after the Act commenced, so the current figure may be higher, and the figure quoted here applies to the amount set when the Succession Act 2023 commenced. It only applies where you leave a spouse or domestic partner and children.
6 months from the grant of probate, under section 118 of the Succession Act 2023 (SA). The court can extend that period at its discretion, but an extension is far harder to obtain once the estate has been distributed.
South Australia uses a tiered scale, so the fee rises with the value of the estate and smaller estates fall into a low or nil band. South Australia charges on a sliding scale based on the value of the estate, so a larger estate pays a higher filing fee. Fees are generally reviewed on 1 July each year.
Then the estate is generally dealt with as an intestacy, unless the Supreme Court of South Australia exercises its dispensing power under section 11(2) of the Succession Act 2023 (SA) to admit the document anyway. That is a court application with costs and delay, not a formality.
South Australia is the jurisdiction where out of date advice is most dangerous, because on 1 January 2025 it replaced three separate Acts with a single Succession Act 2023. Any guide citing the Wills Act 1936 is describing repealed law. On the substance, South Australia has the lowest preferential legacy in the country at $120,000 — a fifth of the New South Wales figure — and it has abolished the interested witness rule, so a gift to a witness still stands. Unlike New South Wales and Victoria, it does not permit remote witnessing, and it chose not to introduce it even when rewriting the whole Act.
Not freely. The administrator is legally obliged to distribute according to Part 6 of the Succession Act 2023 (SA). Departing from it generally requires formal steps and can carry tax consequences. The general position across Australia is covered in the national guide.