This part deals with the collection and distribution of a deceased person's estate. The law in this area is mostly contained in the Succession Act 2023 (SA) which came into effect on 1 January 2025.
See also: Probate and Letters of Administration
When a person dies leaving a valid will, certain procedures must be followed before that person's wishes can be carried out. Lawyers, the Public Trustee and private trustee companies do this type of work. Usually a grant of probate (registering of the will by the Supreme Court) is required so that the assets of the estate may be collected for the beneficiaries. Small estates can often be handled without obtaining a grant of probate but large amounts of money and assets such as land cannot be transferred or sold without a grant of probate. If a will is defective or is challenged, it may not be possible to obtain probate.
If the will does not appoint an executor, or the executor is not able or willing to handle the estate, an application must be made for a grant of letters of administration with the will annexed.
A grant of probate or letters of administration with the will annexed also protects the beneficiaries, who can be assured of being the only people who will receive the property of the deceased. If another person disputes their claim by the production of another will, the only way that person can receive any of the estate is to apply to the court to revoke or change the grant of probate.
For a grant of probate to be made, there must be a will. Often loved ones do not know whether or not the deceased left a will or, if there is a will, where it can be found. If the will is not with the deceased's personal papers, it may be worth checking the deceased's bank, lawyer or accountant. Enquiries should also be made with the Law Society of South Australia, the Public Trustee, and the Supreme Court of South Australia.
If no will can be found, the person is treated as having died intestate (without a will). See If there is no will.
It is not uncommon for a will to say that a particular person has the right to live in a home for that person's life. This is called giving a life tenancy (also called a life interest or life estate). Advice should always be sought as, depending on the wording, the right to use the property may cease if the life tenant no longer resides in the home. Alternatively, the life tenant may have the right to use the home for the rest of their life, even if not residing in the home. This may allow the life tenant to rent the home to someone else and collect the rent payments.
A will generally says that a life tenant must pay rates, taxes and maintenance costs on the home. If these costs are not paid, another beneficiary may be able to apply to the Supreme Court for an order requiring the payment of costs or the termination of the life tenancy.
At any time during the life tenancy the other beneficiaries and the life tenant may negotiate to terminate the life tenancy, usually with some payment to the life tenant. Alternatively, if all the other beneficiaries agree, the home can be sold and another (perhaps more suitable) home may be purchased over which the life tenancy will continue. Legal advice should always be sought in these circumstances.
At the end of the life tenancy the home is dealt with according to the provisions of the will.
Where a will does not distribute all of a deceased person's estate, that person is said to have died partially intestate. The part of their estate that is not disposed of under their will is divided according to the law of intestacy. See Distribution of an intestate estate.
Where a beneficiary who is not a child of the testator dies before the testator and the deceased beneficiary's interest in the estate was a specific gift, the gift lapses and becomes part of the residuary estate. Where the deceased beneficiary's interest in the estate was a share of the residuary estate, the share must be distributed according to the law of intestacy.
If the deceased beneficiary was a child or a grandchild of the testator, the gift or share does not necessarily lapse if the deceased beneficiary has a child or children living at the date the testator's death. In this situation, unless a contrary intention appears in the will, the gift or share would pass to and be distributed according to the deceased beneficiary's estate. It would not necessarily pass to that deceased beneficiary's children [Succession Act 2023 (SA) s 31].
If the deceased has not left a valid will, their estate will be distributed according to the law of intestacy. See Distribution of an intestate estate.
It is not possible to obtain probate if a deceased person has not left a will. Instead, it is usually necessary to apply to the court to appoint an administrator to carry out the order of the court known as letters of administration. See Probate and Letters of Administration.
If there is no will to follow, the estate of a deceased person is distributed in the order set out in Part 5 of the Succession Act 2023 (SA). This is known as the law of intestacy or the statutory order.
Notice cannot be taken of any wishes of the deceased that are not expressed in a will. As with probate, some assets can be handled without obtaining letters of administration but it is likely to be more difficult. The method of dividing an intestate estate is set out below.
If the deceased has a spouse or domestic partner and no children at the date of their death, the whole of their estate passes to the spouse or domestic partner [Succession Act 2023 (SA) s 105(1)(a)].
Who is a domestic partner?
A domestic partner is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of the deceased's death or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of the deceased's death [Succession Act 2023 (SA) s 3].
A person may be declared to be a domestic partner of another person under s 11B of the Family Relationships Act 1975 (SA) if they had been living in a close personal relationship and
What is a close personal relationship?
A close personal relationship means a relationship of 2 adult persons (whether or not they are related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis. It does not include a legally married couple or a relationship where one of the persons provides care for a fee or reward [Family Relationships Act 1975 (SA) s 11].
Declaration by the Court
A court may make a declaration that 2 persons were domestic partners on a particular date. The court must take into account all of the circumstances of the relationship, including any one or more of the following:
See Family Relationships Act 1975 (SA) s 11B(3).
The definition of domestic partner is relevant for the following matters affecting estates:
Where the deceased leaves a spouse and a domestic partner, but no children, each is entitled to an equal share of the deceased's estate, including any personal belongings, sentimental items and vehicles of the deceased, that would have gone to a sole spouse or domestic partner [Succession Act 2023 (SA) s 106]. If the deceased's spouse and domestic partner cannot agree on the division of personal belongings, the administrator may, after giving 3 months' notice, sell the belongings and share the proceeds equally between the spouse and partner.
The Supreme Court may, on application, order that a deceased's estate be distributed between a spouse and domestic partner in a particular way that it considers just and equitable [s 106(5)]. This may allocate the whole of the estate to the deceased's spouse or partner, if just and equitable to do so [s 106(6)].
This provision does not apply where the deceased has legally divorced their spouse.
If the deceased leaves a spouse or domestic partner and children, their estate will be distributed as follows:
Estates worth $120,000 or less
The spouse or domestic partner is entitled to the whole of the estate [Succession Act 2023 (SA) s 105(1)(b)] .
Estates worth more than $120,000
The spouse or domestic partner is entitled to $120,000, plus half of the balance of the estate and any personal belongings of the deceased (including sentimental items and motor vehicles) [s 105(1)(c)(i)].
The children of the deceased are entitled to the balance of the estate in equal shares [s 105(1)(c)(ii) and s 108].
If the deceased's spouse or domestic partner dies less than 30 days after the deceased dies, the law does not consider the spouse or domestic partner to have survived the deceased [s 101(4)]. The deceased's estate will be distributed as though there were no spouse or domestic partner.
For information about adopted, illegitimate or step-children, see Children only.
Note: the value of an estate for the purposes of intestacy increased on 26 February 2009 from $10,000 to $100,000 and on 1 January 2025 from $100,000 to $120,000. The applicable figure is the one in force as at the date of death.
Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, those children receive equal shares of the estate [Succession Act 2023 (SA) s 105(1)(d) and s 108].
If a child has died but is survived by their children (grandchildren of the deceased), they are entitled to their parent's share in equal parts [s 108(e)(ii)]. If a child has died and is not survived by children, their share of the deceased's estate is divided among the deceased's living children [s 108(b)].
Under the law of intestacy, children includes adult and minor children and any adopted children [see Adoption Act 1988 (SA) s 9]. A person who has been adopted cannot share in their birth parent's estate unless the adoption occurred after the death of the birth parent.
Step-children who have not been formally adopted are not entitled to any portion of an estate under the law of intestacy but may be able to apply for a family provision order. See Inadequate provision.
All children, whether born within or outside a legal marriage or qualifying relationship (defined as a marriage-like relationship), are entitled to share in the intestate estate [see Family Relationships Act 1975 (SA) s 6]. A child born outside marriage or qualifying relationship, however, may need to apply to the court for a declaration if the deceased parent has never acknowledged paternity [ss 8, 9].
If a house is owned jointly by two people, and one dies, the house automatically belongs to the other. This cannot be changed by will.
If an intestate person who owned a house in their name only is survived by a spouse or domestic partner, and the spouse or domestic partner was living in the house at the time of the death, the spouse or domestic partner may elect to acquire the deceased's interest in the house [Succession Act 2023 (SA) s 102]. An election must be made within 3 months of the grant of administration or of receiving notice of their right of election. The spouse or domestic partner may continue to live in the house during this period.
If a spouse or domestic partner makes an election under s 102, the amount they are entitled to under the law of intestacy will be reduced by the value of the interest in the house [s 102(7)]. If their entitlement is less than the value of the property interest, they will need to pay into the estate the difference between the two.
If the spouse or domestic partner cannot afford to pay the difference between their entitlement and the value of the house, they may be able to apply to the Court to postpone the sale of the house until their children have all turned 18. Alternatively, they may wish to consider applying for a family provision order. See Inadequate provision.
Where a person dies without a spouse, domestic partner or children, the law of intestacy sets out the order in which their relatives will inherit their estate [Succession Act 2023 (SA) s 105(1)(e) and s 109]:
The estate of a person who dies without a valid will and with no living relatives will go to the Government [s 110]. The Attorney-General may, on application, waive the Government's entitlement to an estate in whole or in part in favour of another person or organisation [s 110(2)].
The law of intestacy is subject to the common law forfeiture rule, which prevents a person who kills another unlawfully from profiting or benefiting from their crime. If the forfeiture rule disqualifies a person from inheriting part of an estate under the law of intestacy, they will be treated as having died before the deceased [Succession Act 2023 (SA) s 125]. See Forfeiture for more information.
In most cases there is no dispute as to whether a document is the last will of the deceased and probate is granted in common form without a court case.
Obtaining the grant involves registering (either personally or through a lawyer) and uploading relevant information into the CourtSA online portal. For more information, see the probate webpage on the Courts Administration Authority website.
There is currently no requirement for a separate executor's oath, but the original will of the testator must be uploaded, and the following documents are now generated automatically by CourtSA:
The filing fee varies from $957 to $3,826 (as at 1 January 2025), depending on the gross value of the deceased estate. Always check the Courts Administration Authority website for the current fees.
Where there is a dispute (see Contesting a will) that has been decided by the Supreme Court, the Court makes a grant of probate in solemn form.
The procedure for obtaining letters of administration is similar to that for obtaining a grant of probate.
Obtaining the grant involves registering (either personally or through a lawyer) and uploading information into CourtSA online. For more information, see the probate webpage on the Courts Administration Authority website.
For estates where the deceased died on or after 26 June 2014, the documents to be uploaded to CourtSA include:
CourtSA will automatically generate a statement of assets and liabilities.
For estates where the deceased died prior to 26 June 2014, in addition to the above documents, the following documents must also be lodged:
In both an application for letters of administration and letters of administration with the will annexed, it is possible to avoid filing the affidavit of justification of sureties and the surety's guarantee if there is an application to dispense with the guarantee.
Where there is a valid will, but no executor is appointed or the executor has died or is unwilling or unable to act, letters of administration with the will annexed must be obtained. The procedure is very similar to obtaining letters of administration. The original will must be lodged with the application.
Probate or letters of administration cannot be granted earlier than 28 days after the death of the deceased [Uniform Civil Rules 2020 (SA) r 356.20]. Usually the grant is made within 2 to 5 weeks of the application, depending on the workload at the Probate Registry at that time and whether all the papers are in order. If there is any doubt or difficulty about a will, the Registrar may require further affidavits to be filed.
An executor, administrator or trustee of an estate must not dispose of an asset of the deceased that has not been disclosed to the Court [Succession Act 2023 (SA) s 71(7)].
If a formal grant of probate or letters of administration is not needed (see release of assets) assets need not be disclosed.
If a statement of assets and liabilities has already been generated by CourtSA, and something needs to be added or corrected, disclosure can be made through the CourtSA portal. Where grants were issued prior to the commencement of the CourtSA portal, the paper Form 56 will need to be filed. See the Courts Administration Authority probate webpage for more information.
While a property caveat is lodged over real estate (see Law Handbook page on Caveats), a probate caveat is a specific type of caveat relating to an estate matter [see Succession Act 2023 (SA) s 62, Uniform Civil Rules 2020 (SA) Chapter 25 Part 4 Division 1 and r 254.3]
A probate caveat prevents (at least temporarily) an executor or administrator from obtaining a grant of probate or letters of administration that would allow the finalisation of an estate. It allows the person lodging the caveat to raise concerns they may have (such as whether the testator lacked legal capacity when they made their will, or whether there is a later will that revokes an earlier will) before probate or letters of administration is granted.
Like property caveats, a person lodging a probate caveat should have grounds for doing so, and the caveat should not be used as a tool simply to frustrate the estate process. For example, a person should not lodge a caveat when they intend to make a claim for inadequate provision under Part 6 of the Succession Act 2023 (SA), as this is more appropriately dealt with through other processes. The person lodging the caveat should be prepared to participate in court proceedings if the caveat is challenged. Court costs may apply and such proceedings may be complex. As there are cost risks involved in lodging a probate caveat where there are no grounds to do so, any person wishing to lodge a probate caveat should first seek legal advice.
A probate caveat will expire 6 months after it is lodged, unless it is otherwise withdrawn, dealt with, or extended in that time [Uniform Civil Rules 2020 (SA) r 354.1(5)].
All documents relating to a probate caveat must be lodged via the CourtSA online portal.
As at 1 January 2025, the fee for entering or withdrawing a caveat is $43. Always check the Courts Administration Authority website for the current fees.
Usually a person is appointed both as an executor and a trustee although these roles have important differences. The executor's role ends after all the assets of the estate have been collected, all the debts have been paid and the balance is distributed to the beneficiaries. Where the terms of the will create continuing duties, such as the support and maintenance of young children or the administration of money for someone's benefit, this role is performed by the trustee.
An executor is the person named in a will to carry out the wishes of the testator after they have died. The basic duties of an executor are to collect the assets of the deceased, pay any debts owed, and distribute the estate to the beneficiaries under the will. How this is done depends on the terms of the will and the nature of the estate. An executor's duties do not come into effect until the testator has died.
Any adult with legal capacity may be an executor. A testator may appoint a relative, a trusted friend or a professional. An executor may also be a beneficiary under the will.
More than one executor may be appointed under a will. They may be appointed to work together or a testator may choose to appoint a back-up to act if their preferred executor is unable or unwilling to act or dies before the testator.
Professional executors will usually charge a fee for their services which will be paid out of the estate. Non-professional executors such as relatives or friends may seek help from professional services to administer the estate, such as financial advisors, accountants, and lawyers. These fees will be paid out of the estate.
Being an executor may involve any of the following:
From the deceased's estate the executor must pay, in the following order:
This priority of payment is also followed when a person dies leaving more debts than assets.
Specific items left to beneficiaries are given to them, and in the case of items such as personal belongings, this may be done soon after the death of the deceased. However, if the deceased left gifts of money, the deceased's assets may have to be sold (realised) to obtain the money for distribution.
The selling of assets must be performed with diligence; in other words, as soon as practicable. However, it can often take a year or more to distribute an estate. Unnecessary delay can have unintended and unexpected consequences, such as additional tax implications, and may cause or result in loss to the estate. If an executor does not act diligently, the beneficiaries may complain to the court. This is the only right of a beneficiary before distribution, as the beneficiary does not own the property until the executor distributes the estate.
The Australian Death Notification Service notifies participating organisations (including certain banks, utilities providers and superannuation companies) that someone has died. It is a free federal government initiative to help people get in touch with multiple organisations using a single online notification. Before using the service, the death needs to have been registered with the Registrar of Births, Deaths and Marriages (Consumer and Business Services). The service only works where the certificate matches the details provided to the record.
A person who has been named as an executor may also wish to read the Public Trustee's online resource I've been named as executor – where do I start?.
It is usually safest to appoint more than one executor, except in the simplest of cases. Executors may be appointed to work together or one may be appointed as a back-up if the testator's preferred executor is unable or unwilling to act or dies before the testator.
Where no executor is appointed in a will
Where no executor is appointed in a will, the Court may grant the administration of the estate to a person entitled to the residue of the estate or (if appropriate) some other share of the estate. If the beneficiaries so request, the Court may appoint the Public Trustee or a private trustee company to administer the estate. If there is no person in South Australia over the age of 18 willing or able to act as executor, the Court may order that the administration be granted to the Public Trustee.
A person appointed as executor does not have to accept that responsibility [Succession Act 2023 (SA) s 66]. If a person renounces (refuses) such an appointment, the other executor named in the will becomes the sole executor. If no other executor is named in the will, the procedure above applies. This sometimes happens where the will is old. If there is no living executor, the procedure outlined above applies.
Where a sole executor dies
If the sole executor dies after the testator and after probate is obtained but before administration of the estate is complete, the executor of the deceased executor's estate becomes executor of the deceased's estate. The issues raised by the death of an executor are quite complex depending on the stage that matters have reached and legal advice should be sought.
Where the sole executor is under 18 years
Where the sole executor appointed under a will is under the age of 18, the Court will appoint the child's guardian as executor until the child reaches 18 years of age.
Where the executor has breached their duties
Court action can be taken against an executor who breaches or fails to discharge their duties. An executor’s duties are to preserve, protect and administer the testator's estate diligently. An executor may breach these duties if they take no steps to administer the estate, do not follow the directions in the will or fail to preserve estate assets or cause loss.
There are several types of breach and these can often overlap. The main categories of action against an executor are:
Misappropriation occurs when an executor uses an estate’s assets to pay their personal liabilities or fraudulently disposes of them for a profit.
Where assets have been dealt with in a manner other than provided in the will or by law, an action for maladministration may be sought. Examples of maladministration include failing to pay and discharge debts, selling property under market value, and using assets for personal use. It is not a defence to an action for maladministration that the executor acted in good faith.
A breach of an executor’s duties can also result in an action for breach of trust. For example, an executor who fails to demand and enforce payment of a debt owed to an estate will be in breach of their duty of care. If a loss is suffered by the estate as a result of the failure to enforce the debt, the executor will be liable to repay the loss.
Further examples of breach of trust include:
If found liable, the executor must make good any loss to the estate. It will not be a defence that the estate has been fully administered and there are no assets to meet the claim.
From 1 January 2025, the Supreme Court has new codified powers to hold executors to account.
Under s 97 of the Succession Act 2023 (SA), the Court may require an executor or administrator to give an undertaking to the Court, including an undertaking as to the administration of a deceased estate.
Under s 98, the Court is empowered to take action if an executor or administrator fails to perform their duties or fails to comply with an undertaking given to the Court or a direction of the Court in relation to the administration of a deceased estate. The Court may
Court action to hold an executor to account under s 98 must be started within 3 years after becoming aware of the executor’s failure to meet their duties [Succession Act 2023 (SA) s 98(3)]. Seek legal advice before taking court action as there may be costs implications.
The testator may specifically state in their will that the executor is to be paid for the work of administering the estate. A legacy or gift to an executor in a will is usually construed as being dependent on the performance of the executor's duties. If an executor dies without carrying out those duties, the legacy may fail.
Even if the will does not provide for the payment of the executor, the executor may apply to the Court for a commission for the work performed [Succession Act 2023 (SA) s 96]. Generally a lawyer who acts as an executor will not be entitled to a commission in addition to the normal legal fees for such work.
Non-professional executors may seek advice and help from professional services to administer a deceased estate, such as financial advisors, accountants, and lawyers. Any fees incurred will come out of the estate.
Some of a trustee's duties and responsibilities are set out in the Trustee Act 1936 (SA) but most are found in the common law. Sometimes it is necessary or advisable to add to these, or vary them, in the terms of the will. Generally, trustees have a high duty to act honestly and in good faith when carrying out particular duties of trust given to them under a will.
A beneficiary who is dissatisfied with the performance of a trustee may complain to the Court.
From the proceeds of the deceased's estate, the executor must pay, in the following order:
This priority of payment is also followed when a person dies leaving more debts than assets.
Before the assets of the deceased's estate can be distributed to beneficiaries, the funeral expenses may need to be paid. The person who organises the funeral (usually the executor) is responsible for paying the invoice. Some banks are able to pay funeral costs directly from the deceased's bank account once they have received the tax invoice. If this is not possible, an executor may need to pay the funeral costs upfront but will be entitled to be repaid before other creditors are paid. A testator may state in their will how the funeral expenses are to be paid.
Creditors of an estate must wait until the assets of the estate are available to the executor or administrator and reasonable funeral and testamentary expenses are paid before they may receive payment.
The will usually states which part of the estate must be used to pay the debts, including the funeral expenses. Usually the residuary estate (those assets not specifically left to a particular person) is used for this purpose. If the residuary estate is insufficient to pay the debts, other specific gifts in the will may be used to bear these costs proportionately. There is a particular order for payment of debts in these circumstances.
If the deceased had more debts than assets, administration of the estate will not follow the usual course. In these circumstances:
Sometimes the proceeds of the deceased's life insurance policies are preserved from the bankruptcy. If so, they are distributed according to the will or the intestacy rules. Whether this is possible depends on whose life is actually insured, the type of risk insured against and how long the policy has been in force before the date of bankruptcy. Of course, if the policy does not belong to the deceased, the proceeds are not available for the deceased's creditors. They would belong to the owner of the policy. If, for example, the spouse has insured the life of the deceased, the spouse will be entitled to the policy proceeds.
When an estate is very small, there may be no need to obtain a grant of probate or letters of administration. This depends on the amount of the estate, how the money is held, and certainty about the existence and operation of a will. It also depends on whether or not it is possible to get hold of the deceased's assets without a grant of probate or letters of administration. Where this is not possible, the procedures for dealing with an estate must be followed. Where it is possible, there is no need to employ a lawyer, although sometimes it may be helpful. It is not possible to say precisely when a grant of probate or letters of administration are not needed. The following is a guide only.
The Australian Death Notification Service notifies participating organisations (such as certain banks, utilities providers and superannuation companies) that someone has died. It is a free federal government initiative to help people get in touch with multiple organisations using a single online notification. Before using the service, the death needs to have been registered with the Registrar of Births, Deaths and Marriages (Consumer and Business Services). The service only works where the certificate matches the details provided to the record.
From 1 January 2025, the Public Trustee may administer a small estate (an estate valued at $100,000 or less that does not include real property) without needing to apply to the Supreme Court for probate or letters of administration. Once the Public Trustee has given notice to the Registrar of Probates and published notice in the Government Gazette and on its website, the Public Trustee will be taken to have been granted probate or administration (as the case may be) [Succession Act 2023 (SA) s 73].
If the deceased had a bank account, the bank may require probate or letters of administration before the executor can close the account. It is worth asking the financial institution to see whether money can be released without probate or letters of administration. Requirements vary from institution to institution and it depends on the value of the estate.
From 1 January 2025, the Succession Act 2023 (SA) expressly permits a person or institution holding $15,000 or less in cash or property belonging to the deceased to pay the money or transfer the property to a surviving spouse, domestic partner or child of the deceased without a grant of probate or administration [s 100].
If an account is in the deceased's name only, financial institutions may permit the release of funds to cover funeral expenses, or may be able to pay funeral costs directly when provided with a tax invoice.
Money held in a joint account automatically goes to the surviving account holder when the other account holders dies.
Where the deceased owned a house or land or an interest in a house or land (such as a mortgage or lease), in their name only, a grant of probate or letters of administration will be needed. This also applies where the deceased owned an interest in land as a tenant in common.
No grant of probate is required to deal with a house or land owned as a joint tenant. A surviving joint tenant automatically owns the whole property when the other joint tenant dies. The deceased person's interest does not form part of the deceased estate and cannot be left to someone in a will.
Despite this automatic operation, the death must be noted on the certificate of title to the property before any further dealing with the property can take place. The surviving joint tenant must lodge an Application to Register Death with Land Services SA, on the form prescribed by the Register-General.
It is strongly advised that a conveyancer or lawyer prepare and lodge the application, because the identity of the surviving joint tenant must be verified as part of the application. There is a fee to lodge the form.
A grant of probate or letters of administration is not usually needed to transfer the registration of a motor vehicle from a deceased person to a beneficiary. An application for transfer of ownership form must be lodged with Registration and Licensing.
A fee is usually payable for the transfer of registration but a beneficiary who inherits a vehicle may be eligible for a reduction or exemption of stamp duty. They will usually need to provide evidence of their entitlement to the vehicle (such as by providing a copy of the will) and a completed application for an exemption from stamp duty. See the Department for Infrastructure and Transport's online information to learn more.
Generally there is no special procedure required for the transfer of personal goods, belongings and sentimental items.
Many people have life insurance policies that mature on their death. Generally, insurance companies are prepared to pay out on these policies without a grant of probate or letters of administration when the sum is below a certain amount. Check with the applicable insurance company.
Cryptocurrency, for example Bitcoin or Ether, are digital assets that form part of a deceased’s estate on their death. Despite the name, cryptocurrency is not considered to be money or foreign currency in Australia [ATO Taxation Determination TD 2014/25] but it is considered property (legally a chose in action) [see Re Blockchain Tech Pty Ltd [2024] VSC 690 at [383] - [389]]. Cryptocurrencies are not regulated and issued by a central authority like a bank. They rely on a decentralised peer-to-peer system to record and verify transactions in a public ledger called blockchain where a record of all transactions are updated and held by the currency holders. The value of cryptocurrency is driven entirely by supply and demand making its market value very volatile.
For more information about what cryptocurrency is, see Cryptocurrencies on moneysmart.gov.au and the Reserve Bank of Australia website.
In summary, cryptocurrency exists as digital tokens stored in a digital “wallet”. The wallet may be stored online as a software (hot) wallet or on a hardware (cold) wallet such as an external hard drive. In both cases, the owner will be provided with a private key or set of keys (passwords) that are used to access and trade the cryptocurrency. Owners of cryptocurrency do not own anything tangible, but instead hold a key (password) that allows them to access and transfer the cryptocurrency to another person. If the keys are lost or forgotten, there is no way to recover the cryptocurrency.
If the deceased owned cryptocurrency, it can only be transferred to beneficiaries if the executor or administrator has access to the digital or physical wallet as well as the keys (passwords) to access the wallets. Without this access, the cryptocurrency is unable to be transferred to beneficiaries and is simply lost.
Any cryptocurrency must be disclosed on an application for probate or letters of administration. However, probate or letters of administration may not be required to affect the transfer to beneficiaries.
Cryptocurrency transfers are subject to capital gains tax [ATO Taxation Determination TD 2014/25]. Beneficiaries should be provided not only with their share of the cryptocurrency by transfer, but also copies of the necessary documents to be properly assessed for tax purposes on sale of the asset.
It is important to consider cryptocurrency in estate planning by:
Generally speaking, a beneficiary is not entitled to any of the deceased's property until the executor distributes the estate. This can cause hardship if the main beneficiary is a spouse or domestic partner who has no other source of income.
From 1 January 2025, a person or institution holding $15,000 or less in cash or property for a deceased person may pay the money or transfer the property to a surviving spouse, domestic partner or child of the deceased without a grant of probate or administration [Succession Act 2023 (SA) s 100]. This is intended to allow banks, for example, to transfer small amounts to immediate family quicker than it may take following a grant of probate.
A surviving spouse or domestic partner may be entitled to social security assistance (see the Law Handbook section on Centrelink), and a surviving spouse or domestic partner may be able to obtain a loan, using the estate as security. In some cases an executor, such as the Public Trustee, may make a partial distribution, or an advance, to a surviving spouse or domestic partner.
Such hardship may be avoided by keeping a joint bank account. On the death of either account holder, the whole of the account passes to the survivor.
Under s 2 of the Survival of Causes of Action Act 1940 (SA), with some exceptions, legal actions by or against a person may be continued after that person's death. Legal advice should be sought as soon as possible if a party to existing court proceedings dies.
An application for a grant of probate or letters of administration is subject to a fee which must be paid when the application is lodged.Check the Court website for a list of current fees.
In many of the steps involved in administering an estate, a certified copy, or an extract, of a death certificate is required to prove a death. These can be obtained from the Registrar of Births, Deaths and Marriages via online or paper application.
Processing times vary but an estimated processing time can be generated on the Consumer and Business Services website. For an additional fee, an urgent application can be upgraded to priority service and it will be assessed within 1 business day. Current fees can be checked on the Births, Deaths and Marriages website.
There is no longer any kind of death duty in Australia. If a person died before 1980 and the estate has not been administered, death duties may be payable. Death duties may be payable in another country if assets are owned in that country.
Executors must file a date of death taxation return. The trustees of a deceased estate must file taxation returns on behalf of an estate where sufficient income has been earned for taxation to be payable or if a refund is sought. While no capital gains tax is payable for people who died before 20 September 1985, where people have since died, capital gains tax may be payable by whoever sells the asset.
The taxation of deceased estates can be complicated by a range of factors including the country of residence of the deceased, the executor and the beneficiaries, the intermingling of different types of assets subject to different taxation rules (such as superannuation, interest, and aged care fees) and the existence of a family business or trust.
Executors and administrators should strongly consider seeking legal and financial advice as soon as possible following the commencement of their duties. Mistakes or delays in administering an estate, including filing a taxation return, can result in loss and beneficiaries can apply to the Supreme Court seeking orders that the executor or administrator compensate them or cover the loss personally.
Legal fees for administering an estate vary according to the amount of work involved. This depends on the nature and number of assets and, to some extent, the terms of the will. Lawyers charge for obtaining a grant of probate or letters of administration and for subsequent work in the administration of the estate at commercial rates according to the conveyancing and general scale of costs under Schedule 6 of the Uniform Civil Rules 2020 (SA), or at a rate agreed between the solicitor and client in a costs agreement.
The Law Society of South Australia can supply the contact details of lawyers who do probate work. Call (08) 8229 0200 or access the online See a Lawyer Referral Service to find a lawyer.
Firms that do probate work should be able to provide an idea of the potential range of costs for administering an estate.
The Public Trustee is a statutory corporation. Its functions include administering deceased estates. The Public Trustee charges for work done as an executor for its clients.
Concession holders and people with protection or administration orders issued by the South Australian Civil and Administrative Tribunal or a court may access the Public Trustee’s free service to manage wills and enduring powers of attorney. Non-concession holders are no longer eligible to access the Public Trustee for new wills and enduring powers of attorney or to make changes to existing wills and enduring powers of attorney.
When deciding whether to appoint the Public Trustee if eligible (or any trustee company) as executor, or to appoint an individual who may need to employ a lawyer to administer the estate, it is useful to compare the potential fees and charges of the Public Trustee with what a lawyer may charge.
The cost of administering an estate depends on the value of the estate and the amount of work involved.
The rate charged by the Public Trustee is 4.4% (GST inclusive) of the value of the estate up to $200,000. The rate reduces for that part of an estate above $200,000, but an additional lump sum is also charged for estates over $200,000. See the Public Trustee's information about fees and charges.
Note that the value of the estate for calculating the commission is the value of the assets before debts are taken into account.
Different rates apply to the transfer of a matrimonial home to a surviving spouse and to the collection of rent and other income. Further charges may be made for the preparation of documents or for other services additional to a normal administration. There is no charge for joint tenancy property.
The Public Trustee drafts wills free of charge for people who are eligible provided it is appointed as executor. See the Public Trustee website for more information.
There are a number of private trustee companies in South Australia, each of which is authorised by a special Act of Parliament to administer deceased estates and to conduct trustee and agency businesses generally.
Private trustee companies charge a rate that is generally slightly higher than that of the Public Trustee. The rates charged vary from company to company. Reduced commissions are charged in certain cases. Some trustee companies charge for preparing wills. Trustee companies will act jointly with a private executor. People considering having a trustee company prepare a will and administer an estate should find out the charges before proceeding.
Where there is no will (an 'intestate estate')
A domestic partner is entitled to inherit an intestate estate (see Distribution of an intestate estate). There is no requirement that a person be legally married to the deceased in order to inherit.
Where there is a will
A domestic partner is eligible to apply under Part 6 of the Succession Act 2023 (SA) for a family provision order if they believe the will of the deceased will leave them without adequate provision for their proper maintenance, education or advancement. See Inadequate provision.
Under section 9 of the Adoption Act 1988 (SA), an adopted child of the deceased is treated as a natural born child of the deceased and ceases to be the child of any previous birth or adoptive parents. An adopted child does not therefore have a claim of inheritance from a birth parent. An exception applies where one of the parents of a child dies and the child is adopted by the new spouse of the surviving parent.
Under section 6 of the Family Relationships Act 1975 (SA), all children, whether born in marriage or not, are treated the same when dealing with a will, unless the will states otherwise.
Unless there is something to the contrary in a will executed before the Family Relationships Act 1975 (SA) commenced (29 January 1976), any reference to children will only include children born within marriage.
A step-child who has not been formally adopted is not legally considered to be a child of the deceased. They are not entitled to any portion of the deceased's estate under the law of intestacy and will not inherit unless the deceased expressly names them in their will.
However, step-children can, in some circumstances, apply under Part 6 of the Succession Act 2023 (SA) for a family provision order if they believe the will of the deceased or the law of intestacy will leave them without adequate provision for their proper maintenance, education or advancement. See Inadequate provision.
A reference to a sibling in a will generally includes a half-sibling. For clarity, wills should identify executors, trustees and beneficiaries using their full names rather than by their relation to the testator only. This can help avoid the need for an application to the Court upon the testator's death to determine the meaning of the will.
Where there is no will, the law draws no distinction between full and half-blood in the distribution of an intestate estate [Succession Act 2023 (SA) s 101(2)]. See Distribution of an intestate estate.
Difficulties can arise when a person goes missing and it is not known whether they are alive or dead. Debts may be owed and dependants may suffer hardship if the missing person's assets cannot be accessed.
From 1 January 2025, s 48A of the Guardianship and Administration Act 1993 (SA) allows the Supreme Court to appoint an administrator to manage a missing person's estate if satisfied that
A person may be appointed an administrator if they are
An appointed administrator may
The administrator must inform the Court if they learn that the missing person is alive or has died [s 48A(6)].
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