Death comes to us all, but sometimes sooner than expected

As a general proposition, it is not expected that children will die before their parents.  However, when this does occur to a young adult and they do not have a Will, issues arise as to how to administer the Estate.

There would normally be superannuation payments paid to a fund which need to be collected and perhaps an insurance policy that is part of that fund.  Generally, superannuation fund managers and/or banks will require the person who will administer the deceased’s estate to make an application to the court for letters of administration.

With respect to granting letters of administration, the Uniform Civil Procedure Rules 1999 provides as follows:-

610 – Priority for letters of administration

(1)           The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows:-

(a) the deceased’s surviving spouse;

(b) the deceased’s children;

(c) the deceased’s grandchildren or great-grandchildren;

(d) the deceased’s parent or parents.

In the case of young adults there may be a de facto partner.  A de facto partner who has lived with the deceased for 2 years is regarded as a surviving spouse.

If there is no de facto partner, then it is usually a matter for one or both of the deceased’s parents to apply for letters of administration.  If the parents have separated, an issue can arise as to which parent is to apply for letters of administration, or whether both are to apply.

Issues also arise as to whether superannuation moneys should be paid to the Estate (where they may be used to pay debts) or simply paid to eligible beneficiaries.

When considering the above issues, it is evident that the cost of making a single simple Will that provides clear direction as to a person’s wishes will save your loved ones considerable stress and expense, especially in circumstances where a young adult dies without a Will.

When completing a Will, we also strongly recommend completing an Enduring Power of Attorney.  More information about what is involved in making an Enduring Power of Attorney can be found here.

If you do not have a Will or Enduring Power of Attorney, or if you are considering updating either of these documents, please contact our office to arrange to meet with one of our experienced solicitors.