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What happens when 2 parents are in dispute about a deceased Child’s Estate

So what happens when your child dies and you are in dispute over his estate?.

Peter and Jenny had a child, Matthew, but later separated and divorced.

Matthew grew up and became an adult. Matthew died unexpectantly. He was over the age of 18 years and he did not a Will. He also did not have any dependants.  He was not married, he was not living in a de facto relationship nor did he have any children.

Matthew had a car and some money in a bank account. He also had a Superannuation of $15,000.00 and a Death Benefit which was attached to his Superannuation Fund of $750,000.00.

Peter and Jenny both have significantly different views about who was involved more in Matthew’s life.  They cannot agree on who should deal with Matthew’s Estate and who should receive the benefit from his Estate.

Despite their feelings on the matter, the law and the Superannuation Trustee both have their own rules on who will be able to deal with Matthew’s Estate and how Matthew’s Estate will be dealt with.
As Matthew did not have a Will, he is known as being ‘intestate’.

As Matthew died intestate and did not nominate anyone as a beneficiary on his Death Benefit, the Superannuation Trustee will require the funds to be paid to his Personal Legal Representatives by way of a grant of Letters of Administration.

Section 63(b) of the Probate and Administration Act 1898 (NSW) states that:
“The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to:
… (b) one or more of the next of kin…”

Section 128 of the Succession Act 2006 (NSW) states that:

The parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves:

  • no spouse, and
  • no issue.
  • If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares.”

So despite, how either Peter or Jenny feel about who should deal with and who should receive the benefit from Matthew’s Estate, they are both bound by the rules the law and the Superannuation Trustee as to how this should happen.

  1. However, there are various options out there for them to seek assistance to navigate their way through making the Application. Some of these could include:
    If Peter and Jenny get along, then they can instruct the same Solicitors to deal with Matthew’s Estate and make the Application on their behalf.
  2. If Peter and Jenny do not get along, then they should instruct separate Solicitors to act for each of them.  In this case of the Solicitors would prepare and administer the Estate with the continual consent being obtained via the other Solicitor.
  3. If there is such conflict and there is no trust whatsoever between Peter and Jenny and they are able to work the matter out amicably, then they should each instruct separate Solicitors and find a third independent Solicitor to prepare and administer the Estate with the continual consent being obtained via both Peter and Jenny’s Solicitors.

If you have a situation like this and need assistance or have questions about Estate Planning, call Brazel Moore Lawyers today on 4324 7699.

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