By Annalyse Betts and Kerin Cotchett
Do you have questions regarding where your Superannuation will go when you die? See our article Where will your super go when you die?
The loss of a loved one is difficult*, especially when you were financially or otherwise dependent on them. You may be listed as a beneficiary in your loved one’s Will, therefore becoming a recipient of their estate. If you have not been included in the Will, there may be alternative courses of action for you.
Firstly, you may be eligible to commence a Family Provision Claim, for more information on this see our article Family Provision Claims 101.
Secondly, you may be eligible to claim for part or whole of the superannuation benefit. The general rule is that superannuation does not form part of your estate when you die. Your superannuation is held by the trustee of your super fund who is governed by that superannuation’s trust deed. This deed directs how the trustee of that superannuation fund distributes the deceased member’s proceeds.
A binding death benefit nomination is a nomination that obligates the trustee of the superannuation fund to pay the deceased’s members proceeds in accordance with the direction in the nomination. If your loved one has not executed a binding death nomination you may be able to lodge a claim with the Trustee requesting to be considered for a part or full payment of the benefit.
A few quick points you should consider:
Who can make a claim?
A dependent of the deceased member may also make a claim for the benefit.
Who is a dependent?
- The spouse or de facto partner of the deceased;
- The children of the deceased;
- Anyone with an interdependent relationship with the deceased; and
- Any person who was financially dependent on the deceased at the time of their death.
Demonstrating dependency is not as simple as classifying yourself into one of these categories. You must be able to clearly demonstrate that you shared finances with the deceased or relied on the finances of the deceased in order to survive.
Dependents are often under the age of 18 years. Should the dependent be a minor, the guardian of the minor may make a claim on behalf of the minor. If the claim by a minor is successful (or a trustee directs payment to a minor), the proceeds for the minor will be held upon a “minors trust” and managed by a trustee(s) until the dependent turns 18 years old. Once the child attains 18 years of age they will be able to access the entire benefit.
What does a claim involve?
- A certified copy of the Death Certificate;
- A certified copy of the Will (if there is one);
- A certified copy of the Grant of Probate (if it has been obtained); and
- Contact details of any other dependents of the deceased that you are aware of.
The process of making a claim generally includes the completion of the claim forms and lodging them with the trustee.
Should you require assistance with the claim process please contact our office and our Wills and Estate team would be happy to assist.
What about tax?
What if I am not happy with the result of the claim?
This claim process is dealt with by the superannuation claims tribunal. For further information on this process, please contact our estate specialists to guide you through the process.
It is important to note that every superannuation trustee has different rules (in addition to the Superannuation Industry (Supervision) Regulations 1994) which guide them on how the benefit will be paid and to whom the payment may be awarded to. For further information or detailed advice regarding your claim, please do not hesitate to contact our office. We have experienced solicitor’s in our Wills and Estates team who are happy to assist.
Elringtons Lawyers |Wills and Estates
p: | 02 6206 12300 | e: crec@elringtons.com.au
*For the purposes of this article, a reference to a loved one is a reference to a spouse or de facto (domestic) partner.
