When you are formulating a Will, it is not well known that your hard-earned superannuation does not automatically form part of your estate.
Generally, only assets owned in your name such as your house, car, investments and savings will make up your estate and can be dealt with under your Will.
Your superannuation is held by the trustee of your superannuation fund and there are special rules that govern how a trustee can distribute your superannuation after you die. Under those rules, there are people who may be able to make a claim on your superannuation that you did not wish to or expect to benefit.
You can have some control over where your superannuation will go by making a nomination. This means that you nominate someone to receive your superannuation upon your death. However, a trustee is not obliged to follow a non-binding nomination and may elect (in accordance with governing legislation) to distribute the money to someone other than your nominee.
Binding Death Nomination
Often you will have the option of making a binding death nomination. This is binding upon your superannuation trustee. However, you must be sure to:
- Update it if your circumstances change – for example, if you marry or divorce; and
- Renew it, because a binding nomination will lapse every three years from the date it is first signed, last amended or confirmed.
You can nominate your estate or your personal legal representative under a binding death nomination, and the trustee will then pay your superannuation to your Estate. This means that your superannuation will then be distributed in accordance with your Will. Alternatively you can nominate a spouse or family member who you wish to receive the benefits.
If there is no binding nomination, then the trustee can elect to pay your superannuation to your estate, or it can pay to your dependants. Your dependants are your spouse (including a separated spouse), children, a partner (including same-sex partner) or someone else with whom you have an interdependency relationship and those who depend on you financially in any other capacity.
This can create uncertainty for surviving family members who are trying to pay debts and administer your estate. When you are the proprietor of a business, you may wish for your superannuation to be available to your personal representative to deal with business debts as they see fit. Or you may prefer that your superannuation not be used to cover business debts and instead be allocated to support your surviving family.
Careful planning is needed to ensure that you have control over the process.
For more information or to make an appointment please contact our Wills and Estate team:
p: 6206 1300| e: firstname.lastname@example.org