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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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My brother passed away 2 days ago. He does not have a will.

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My brother passed away 2 days ago. He does not have a will. His defacto is legally next of kin (just). She has given me the ok to deal with estate and sort out his affairs. What legal docs do I need her to sign so I can have full control of everything and distribute his only asset (Superannuation) to his 2 daughters equally.

I feel she may challenge my brothers wishes after the burial and rob his daughters of ther inheritance.
Hello and thank you for your question.

Superannuation is not generally distributed through the estate and is therefore not usually subject to the control of the executor, rather the trustees of the superannuation fund distribute super funds (including any life insurance payouts which often attach to such funds) based either on the rules of the trust and or the nominated beneficiaries of the trust.

Some funds have binding nominations whereby the super fund must assign the funds as stipulated by your brother, however, many superannuation funds merely have non binding nominations whereby the super fund trustees need only treat the nomination as a recommendation but still have a wide discretion as to how to distribute the funds. That is not to say they can do what they want but the super fund trustees can form a view as to which of the competing beneficiaries should receive the whole or a share of the benefit. In your brother's case the obvious potential beneficiaries are the children and the de facto. Finally, in some cases the super fund will determine to simply deposit the fund into the estate, in which case it will then be distributed by the executors in accordance with either the will or the intestacy rules (as in your brother's case).

To work out what will happen to the superannuation funds and whether you need to be involved in their distribution, contact the superannuation funds directly (as executor you should be able to identify the likely super funds from his records) as they should be able to advise you. I would also suggest you check whether the superannuation funds included any life policies as if they do it is possible that a large life insurance payout may form part of the super fund and this can mean an otherwise modest superannuation fund can in fact result in a substantial distribution.

At any rate, make sure the daughters put in a claim for any superannuation funds ASAP as the super funds sometimes seem to favour the first credible party to make a claim on them.

I trust the above assists your understanding.

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Customer: replied 4 years ago.
Thank you this makes sense as my brother would definantly have his 2 girls as nominated beneficiaries.

1 - What docs do I need to complete to become executor of the estate and sort out his Credit card debts & tax return.
2 - He has no money other than super. How do I pay his debts.
If he has inadequate estate assets to pay this debts then the creditors have to be advised that there are insufficient funds. You won't know this though until you are sure the super funds won't be paid into the estate.

As to what forms you need to access his accounts and other assets, usually you need to obtain letters of administration from the Supreme court, which typically requires a lawyer's assistance, but if the estate is of only marginal value a bank will sometimes allow the executor access without requiring this. Check with his bank retarding this.

Also once it is clear his estate is insolvent it may be best to simply resign as executor and leave it to the creditors to recover any value from the remaining estate. Hold off on this until the super situation is resolved.

I trust this assists.
Customer: replied 4 years ago.
Hi Havenlawyer,

I have a couple more questions, but my computer freezed and I was not able to use my 20 minutes. The time I was logged on will prove this, as I had to re-start my computer.

Can you please tell me,
1.. What docs do I need to complete to become the executor of the estate? so I have the right to sort out his tax return etc.
2.. How do we pay his credit card debts? The only cash he has is super.

1. Strictly speaking you don't become the executor (which only applies if you are appointed by a will) you become the administrator and you have to apply for letters of administration.

There is no simple standard form for an administration application, or associated affidavits, each of which must deal with the circumstances of the deceased individually. General information on the application process and the forms which must be completed can be found at the court website, but for letters of administration the assistance of a lawyer is, as I said, usually required:

And for assitance in completing the applications contact the registry:

As I previously stated though, if there are insufficient funds there is little point seeking letters of administration and you should simply not seek appointment as the administrator and let the creditors deal with your brother's debts and any claims they wish to make on the estate assets.

2. If their are assets to be applied to the creditors but they are inadequate, you can simply let the creditors know that the assets are inadequate to pay the debts and leave it up to them whether they take the necessary legal action to pursue recover.

Unless someone else was a guarantor for these debts, then the only party liable for them was your brother or his estate and if the estate has insufficient funds, that is the creditor's problem and no one else's.

Sorry, and just to correct my previous post, as there is no will you are not the executor and so do not have those presumed rights to access information from the super fund. Rather you may be able to do that on behalf of the daughters if they consent.

I trust the above assists your understanding of what you have to do.
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