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- office@hqf.com.au
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ESTATE PLANNING
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You’ve taken the first step by preparing your will and enduring power of attorney but there is a critical piece many Australians overlook: superannuation.
Your super is likely your largest asset, yet it doesn’t automatically form part of your estate. Understanding how superannuation integrates with your estate plan can mean the difference between your wishes being honoured or your family facing unexpected outcomes.
Unlike other assets, superannuation is held in trust and doesn’t automatically pass under your will. The trustee of your super fund has discretion over who receives your death benefit, unless you’ve made a binding death benefit nomination. This means even with a valid will, your super might not go where you intend.
There are several types of nominations, each with different legal effects:
Give you control by legally binding the trustee to pay your super to your nominated beneficiaries. However, they expire after three years and must be renewed. Many Australians don’t realise their nomination has lapsed, leaving the decision to the trustee.
Are merely suggestions. The trustee considers your wishes but isn’t bound by them. They can decide to distribute your super differently based on their assessment of who qualifies as dependants.
Automatically continue to your nominated dependant when you die, typically used for account-based pensions in retirement.
Not everyone can be nominated. Under superannuation law, death benefits can only be paid to:
You cannot directly nominate siblings, parents, nieces, nephews, or friends unless they meet the dependant criteria.
The most common mistake? Letting binding nominations lapse. If you made a binding nomination more than three years ago and haven’t renewed it, it’s likely expired.
Your super fund should have notified you, but many people miss these letters or don’t understand the urgency.
You can nominate your legal personal representative (your estate), which means your super will be distributed according to your will. This provides certainty but has considerations:
Your will controls distribution, super becomes part of the overall estate plan, and you can leave super to anyone through your will.
Super loses tax-free treatment for non-dependants, the estate must go through probate before super is paid, and creditors might access super if it enters the estate.
Alternatively, paying directly to dependants keeps super outside the estate, often provides better tax treatment, and allows faster access to funds.
Tax on death benefits depends on who receives them. Spouse and financial dependants (including children under 18) typically receive super tax-free. Adult children who aren’t financial dependants may pay tax on the taxable component. Non-dependants receiving via your estate can face significant tax.
If you’re in a blended family, superannuation planning is crucial. Without proper nominations, your current spouse might receive all your super, leaving nothing for children from previous relationships or vice versa. This is where binding nominations and estate planning must work together.
SMSF death benefit nominations work differently. Check your SMSF trust deed, as it governs what types of nominations are valid. Some deeds allow non-lapsing nominations, while others follow standard three-year rules.
Review your death benefit nominations:
Your superannuation strategy must align with your will and other estate planning documents. Consider the total picture: If your super represents 60% of your wealth, who receives it dramatically affects the overall distribution. Work with professionals who understand both estate planning and superannuation law.
Many Australians make preventable errors.
Contact your super fund today to check your current nomination status. If you don’t have a binding nomination, or if it’s expired, arrange to complete a new one. If you have multiple super accounts, check each one separately. Consider whether paying to your estate or directly to beneficiaries better serves your situation.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
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Please describe your enquiry below
The super fund trustee decides who receives your super, which can take 6-12 months and may not reflect your wishes. A binding nomination ensures your super goes where you intend.
Yes. Each super fund operates independently, so you need a separate nomination for every account. Consider consolidating your super to simplify management.
Yes. All your children qualify as eligible dependants regardless of their financial independence. However, financially independent adult children may pay tax on the taxable component of your super.
No. Your will does not control your superannuation. Super sits outside your estate unless you specifically nominate your “legal personal representative” (your estate) as the beneficiary.