Let’s talk about death – death in contemporary Australia

One of McCabes embedded values is courage and to openly talk about death requires courage.  Given the number of deaths in Australia is projected to double over the next twenty years, we think the time for courage is upon us.  With this in mind, the article examines the steps a person can take before they die to manage their assets upon their death.


Deaths in Australia are projected to double over the next twenty years[1]

In 2015 there were 155,576 registered deaths in Australia.[2]  The number of deaths each year is projected to increase by around 1.5 per cent until 2022.  However, between 2022 and the early 2040s deaths are projected to increase each year by almost 3 per cent.[3]  This doubling in the rate of increase is being driven by what, McCabes has coined — and we apply humour to our acronym to assist in the jettisoning of death’s taboo-like qualities — the “Baby Boomer Boomerang (BBB)”.  Simply, the population demographic known as the baby boomers (those born during the post-World War II “baby boom”) will die around the same time thus lifting death rates.  We think the word “boomerang” adds something Australian to a phenomenon to be experienced throughout most of the Western World.

Death as a “life” and “legal” event

Death is an inevitable “life event” for all of us.  Yet despite this inevitability, death is a topic treated by most of us with taboo-like silence.  As many of our readers will know too well, the death of a loved one is a very real physical event set amidst profound emotions of loss and sorrow.  A person’s death is also a “legal event”.  Indeed, the legalities of death, if not managed and prepared for, can heighten the emotions that death brings on those who are left to manage these legal consequences.

Life is on lease

Death brings legal consequences.  Assets and liabilities of the deceased need to be administered according to any wishes expressed in the deceased’s will.  If no will exists, this administration occurs according to the rules of intestacy.  Before gifts can pass according to any wishes expressed in a will, the will needs to be “proved”.  That is, the court ensures that the will is valid.  This is called obtaining a grant of probate.  With this grant a deceased’s executor can then pay off the deceased’s debts (if needed) and then collect and distribute assets pursuant to the will.

A will is a “legal memorial” to your life — as life evolves so must your will

Preparing a will sounds easy, and it can be, however, whether or not a will assists in smoothing a loved one’s transition through the legal consequences of death is another question.  In our opinion, there are two essential ingredients a will needs in order to smooth this transition:

  • a will must clearly express testamentary wishes (what a person wishes to occur to their assets upon their death); and
  • just like life, a will must be considered through an iterative lens — in other words, is it current? Has your asset and liability position changed since the will was made?  What about marital status?
What about other issues that need consideration to smooth the transition? We mention two particular issues in passing as food for thought.

Assets held in trust cannot be gifted in a will — this includes superannuation assets

Consider superannuation assets.  Australians hold around $2 trillion in superannuation assets.  Around two-thirds of these assets are held in retail superannuation fund accounts and the other one-third in self-managed super funds.[4]  As a general rule, superannuation assets cannot pass under a will — that is, you cannot gift these assets in your will to your beneficiary upon your death.   Why?  Because superannuation assets are held by a trustee and assets held on trust cannot be passed under a will.  (This general rule also applies to assets held in a family trust.)  If you are thinking: “hang on a minute, I paid the superannuation monies into the superannuation account so they are mine”.  You are correct.  But what you need to do is nominate to the superannuation fund itself, where your superannuation funds should go upon your death.  Does this all sound complicated?  Yes, if not prepared for and managed correctly.

What about your on-line presence after you die?

In days of past, a physical version of the family photo album would sit proudly on a mantelpiece for relatives to “admire” when forced upon them.  For today’s Gen X-headed families who have a social-media presence, the physical family album has arguably been replaced by an online montage of family photos and achievements proudly displayed on-line for friends and family to admire by pressing “like” —pressing “like” is far easier than sitting through those family-photo gatherings.  Have you considered who manages this on-line memorial and other digital assets, when a family member dies?  What message would you like displayed on your social media pages when you die (would you like a message at all)?  These and many more questions are emerging in a world where our lives and indeed our death touch both the physical and on-line world.

In our view, the Baby Boomer Boomerang sets the context in which death’s taboo quality should be jettisoned.  With courage in our sails, our three-part series aims to do as such.  Our next salvo will examine the statistics on how many Australians actually have a will and what problems people may face when they die without a will.

[1]           ABS 3222.0 — Population Projections, Australia, 2012 (base) to 2101.

[2]           McCabes estimate for 2015: ABS 3302.0 — Deaths, Australia, 2014.

[3]           ABS 3222.0 — Population Projections, Australia, 2012 (base) to 2101, Projection Results.  

[4]           Reserve Bank of Australia, Financial Stability Review (April 2016) 42.

To read the second in our series about who owns your body after death, click here.


Andrew Gill Graduate
Kamran Khalid Lawyer